Wednesday, January 16, 2013

Why should applicants for public office positions be vetted by private agencies?

By OBUYA BAGAKA

The requirement that those seeking public office demonstrate commitment to national and public sector values is laudable and must be supported by all Kenyans if we are to inculcate the values enshrined in Article 10 & 232 of the Constitution.

This requirement is likely to intensify as a number of Kenyans seek elective posts at both the county and national levels.

As we entrench this ideal, a trend is emerging where State organs are demanding that applicants produce a clearance form from the National Credit Reference Bureau (NCRB). One wonders why these agencies insist on such clearance from this specific private entity and not others.

The demand for clearance by NCRB is illogical, has no basis in public law, and amounts to legitimising an illegality.

In fact, only State organs such as Kenya Revenue Authority, the Higher Education Loans Board, and the Independent Electoral and Boundaries Commission, among others, are permitted by law to exercise sovereign powers delegated to the state by the citizens as clearly enshrined in Article 1 (2) & 2 (2) of the Constitution.

This is so because these State organs are creatures of public law with clear mandates that advance public interest.

The argument advanced for NCRB clearance is to assess the financial probity of office-seekers. But clearance by both KRA and Helb fill this void.

Some people argue that NCRB is vital in assessing applicants’ financial responsiveness. If this is agreeable, what prevents a water or electricity company seeking to issue clearance certificate? Most Kenyans have some financial dealings with these companies.

On what basis did State agencies settle for NCRB’s certificate as a legitimate tool for measuring financial probity?

Before Kenyans accept NCRB certification, there are a number of questions whose answers we must demand.

First, who are the owners of NCRB? Second, were these owners vetted in public or in camera to accord them the legitimacy and moral authority to vet others? Lastly, how independent is the NCRB, and does it advance public or private interest?

Answers to these questions are important because those who want to vet others must be willing to be vetted too. Certainly, NCRB is an important player in private sector financial affairs and should be supported in this regard. But spreading its tentacles into the public realm is far-fetched.

Although I strongly support the role of the private sector in the provision of public goods and services, I firmly believe that the single most important characteristic that separates the public and private sectors is the concept of sovereignty.

The sovereign power of the State belongs to the people of Kenya. Given that citizens cannot independently exercise sovereign powers, they have delegated this power to the State to exercise it in their interest.

Since the idea of sovereignty is largely an abstraction, the actual implementation of the will of the sovereign is assigned to a government.

The government passes laws that permit the will of the sovereign to become a reality through State organs. To the best of my recollection, no legislation has been passed to assign vetting powers to a private entity like NCRB.

The right to enforce laws created by the State can only be enforced by the State through its organs. The State, being a sovereign, is indivisible and, therefore, it cannot assign its attributes to a private party and remain a sovereign.

Similarly a sovereign cannot share its powers with any other body because sovereign powers are already delegated from the citizens. To this end, State agencies that continue to demand clearance from NCRB are in contravention of Articles 1 & 2 of the Constitution.

Allowing private actors to vet aspirants for public office amounts to assigning sovereign powers to a third-party government, whose legitimacy and moral authority is unclear.

Vetting of public office seekers is purely a public function, whose ‘governmental nature’ cannot be assigned or delegated to private parties. The vetting exercise at the Judiciary must be guided by law and not selfish interests of financial entrepreneurs.

Dr Bagaka teaches and co-ordinates the Master of Public Administration programme at the Kenya School of Government, Nairobi.