How public office holders are collaborating to flout the law

August 27, 2010 will remain engraved in the minds of millions of Kenyans who turned out at Uhuru Park in the belief that the Constitution they had overwhelmingly adopted three weeks earlier would cure the governance malaise in the country.

In particular, Chapter Six of the constitution, among others on leadership and integrity, was seen as the panacea to poor government. 

And so, when former President Kibaki lifted aloft a copy of the Constitution with the seal of the republic, the mood was ecstatic. Soon after, the average Kenyan on the street would cite an article or a chapter from the charter.

But almost as soon as the Constitution came into effect, the first casualty was former Deputy Chief Justice Nancy Baraza who was found unsuitable to continue serving in the Judiciary following an altercation at the Village Market where she allegedly drew a gun on a security guard.

As the country headed towards the 2013 General Election, attempts were made to prevent the names of then Deputy Prime Minister Uhuru Kenyatta and former Eldoret North MP William Ruto from appearing on the ballot since they had been indicated on crimes against humanity at the ICC. But the courts rejected that plea, and the two are now the president and deputy president.

Hardly four years since the promulgation of the Constitution, debate on the law and its application seems to have been forgotten if recent government moves are anything to go by.

According to Atsango Chesoni who was the vice-chairperson of the Committee of Experts (CoE) that was charged with reviewing the charter, the main obstalce to realising the benefits enshrined in the Constitution are double standards practiced by Kenyans.

Her argument is that the leaders who are flouting the laws were elected by Kenyans who had the opportunity to make a wise choice but failed to exercise that right.

“We have no moral authority to have the leadership and integrity debate. We cannot complain of one thing today and reward bad behaviour the next day. The blame lies with the people of Kenya,” she said. 

GOD DOCUMENT

The Constitution of Kenya (2010), she says, is a good document despite being a product of compromise of different interests. It seeks to check the powers of the Executive by redistributing power to various organs and state agencies and giving Parliament and the Judiciary operational and financial independence, in addition to the Bill of Rights which now forms part of the supreme law.

However, implementation of the Constitution has faced challenges mainly because people have been resistant to change. “Some of the benefits in the Constitution may not be realised in our lifetime. Changing the way people behave is not easy and takes a long time,” Ms Chesoni said.

Nothing validates her sentiments better than the standard gauge railway saga. As Kenyans celebrated the burial of the the past on that August 27, the tender for the construction of the railway was handed to China Road and Bridge Corporation (CRBC) in what is referred to as government-to-government deal.

BROKEN RECORD

President Kenyatta has meanwhile declared that the project is unstoppable despite questions about the transparency of the awarding of the contract to CRBC as well as what it will cost the taxpayer.

The present administration has defended itself by claiming they inherited the rail project from the previous regime, a deal which, as far as they are concerned, was the best Kenyans could get. A similar line was used by officials in the Kibaki administration to fleece the public of billions of shillings through the Anglo-Leasing contracts.

Meanwhile, the Senate is blatantly ignoring a court order barring it from setting up a committee to look into the impeachment of Embu Governor Martin Wambora by the county assembly, the same senators who, in the past, sought the Judiciary’s intervention regarding their power struggle with Parliament.

“Senate is talking about the principle of separation of powers to justify why they ignored a court order. If they respected a judicial decision when it favoured them, let them do so now as well,” said the chairman of the Commission on the Implementation of the Constitution Charles Nyachae.

But Kitui Senator David Musila disagrees, arguing that the matter of the impeachment of Mr Wambora should be treated differently.

“We went for interpretation of the Constitution, yes, but the impeachment of the governor is also a constitutional matter, and the Senate is required to proceed in a certain way within seven days of receiving the notice of the impeachment. If we fail to do that, won’t we be going against the Constitution?” he said.

When Nairobi Governor Evans Kidero and Women’s Representative Rachel Shebesh had a public altercation in which the governor is alleged to have slapped her, ODM ran to his defence. Yet, without diminishing Ms Baraza’s case, it could have been worse.

The CIC chair holds that the fate of the present Constitution and the pre-2010 laws have more or less suffered the same fate selective application by those charged with implementing them, especially the political class.

“Earlier on everybody was excited about implementing this Constitution, especially Chapter Six, because then it was from a distance. But when we seek to apply it, then personal considerations come in, political considerations emerge. That is what is ailing implementation.”

“When the history of implementing this Constitution is written, I think one of the things that will become very clear is that the political class is determined to consider itself as a different category of public officers and yet that is not the contemplation of this Constitution. For example, the definition of State Officer does not differentiate between elected and appointed. And where no distinction is made, the standards that are stated in the Constitution must apply,” Mr Nyachae said.

According to Law Society of Kenya chair Eric Mutua, “the Executive is able to control the Senate and National Assembly, which is why it is going to be difficult to realise some of the benefits enshrined in the Constitution. There is also the reluctance to realise that there has been a paradigm shift in governance.
But the Executive is not alone; Parliament has followed suit.

The High Court last week declared a law passed by Parliament granting themselves powers to determine their own pay illegal. “Our experience in the last three years is that people, particularly leaders and public office holders, tend to be selective on how they wish the Constitution to be implemented,” he said.

Accordingly, the President has used his “tyranny of numbers” in both Houses to pass certain laws that could return the country to the dark single-party days a case in point is the Kenya Information and Communications Act.

MERE FORMALITY

Meanwhile, public appointments that require vetting by Parliament have become a mere formality. There are still questions on the appointments of National Campaign Against Drug Abuse chair John Mututho and Ethics and Anti-Corruption boss Mumo Matemu, whom a court found unsuitable for the position.

Parliament found nothing wrong with Lands Secretary Charity Ngilu who had integrity issues even in the Kibaki Administration. Even after she created directorates in her ministry and haphazardly dismissed State officers, she remains in office.

But Mr Musila says Kenya is a democracy, and the majority, in this case the Jubilee Coalition, must have their way, even as he concedes that the legislature has often failed to scrutinise proposed legislation, allowing the Executive to have its way.

According to Mr Nyachae, the Constitution redistributed power from the presidency to other organs, who are collaborating with the Executive to abuse the law, giving the impression of a return to an imperial presidency.

“Ultimately, it is the responsibility of Kenyans to ensure the Constitution is implemented.”