Conservatives in Jubilee have restored the old order toppled by Constitution

President Uhuru Kenyatta addresses Jubilee Party governors, deputy governors, MPs, senators, Speakers and majority leaders of county assemblies during the party's first interim National Governing Council meeting at State House in Nairobi on December 15, 2015. PHOTO | PSCU

What you need to know:

  • Year 2015 in fact has been a year of claw back and rolling back the gains because there are many of these young politicians and bureaucrats in government who think the constitution is difficult to implement.
  • Tensions between the spirit of the Constitution and the practise governing the country spilled over to define the relations between independent commissions and some of the government ministries throughout 2015.
  • The national government bought health equipment for county governments but the county governments objected to this because health is a devolved function and, two, there were no adequate consultations between the two levels of government.

By all standards, any government elected on a five-year term shows its character and its vision within the first one year of office.

A third year is meant to be a year of consolidating the gains made, if any, and profile these to leverage subsequent election campaigns.

What any government stands for is also understood through its interventions in governance and development sectors. The policy pronouncements and attendant interventions helps to show the character of the government and its visions.

The Jubilee administration came to office in 2013 and comprised a relatively youthful leadership compared to what the preceding governments presented. The Jubilee Cabinet comprises perhaps the youngest ‘ministers’ Kenya has ever had in many years except perhaps for the first Cabinet appointed immediately after independence. Of course the first Cabinet was young not because of choice but because there were not that many people to chose from.

The Cabinet today comprise relatively young people compared to the many old leaders, and predominately men, that President Moi often presented as his team. Today’s Cabinet comprises relatively younger leaders than those who served in President Kibaki’s government.

The National Assembly also comprises the youngest Members of Parliament compared to previous parliaments. It also has the highest number of professionals who had excelled in their respective careers before getting into politics. The Senate, however, comprises some of the oldest but experienced Kenyan politicians.

This is not surprising because the Senate is supposed to be a house of ‘tribes’ representing the interests of devolution and the tribe in general.

But how the Jubilee administration ran the affairs of the state in 2015, surprisingly, does not show any strong correlation between these qualities and the performance of the government.

In fact, performance has been below expectation compared to Kenya’s general potential. The review of the government also shows a surprising triumph of the old order. The break with the past has not happened even with the coming to force of a progressing Constitution. There are several areas where the government has not performed well.

CONSTITUTIONALISM

The Jubilee administration has not done very well with regard to implementation of the Constitution. As the first government under a new Constitution, the Jubilee administration would have worked hard to make the constitution the solution to real problems.

It would have awakened people’s hopes and created a new Kenya if this was in the interest of many in government. But what we have got thus far is the opposite of what Kenyans bargained for.

Year 2015 in fact has been a year of claw back and rolling back the gains because there are many of these young politicians and bureaucrats in government who think the constitution is difficult to implement. They think the constitution is constraining the Jubilee administration from governing in an effective manner.

To demonstrate their wrath against the Constitution, they attempted to introduce ‘unconstitutional’ laws to manage the security sector. The courts over-ruled them.

The process to ‘slow puncture’ the Constitution did not end there. The present Interior Cabinet Secretary, Joseph Nkaissery, although he has experience on security issues, was picked from the National Assembly for the post.

Politically speaking there was nothing wrong in picking the Cabinet Secretary from Parliament. But government committed to breaking with the past and creating a solid foundation of the Constitution would have picked someone from outside parliament.

The government would have avoided doing so especially because he also was in the minority party.

There were several other instances that showed that Jubilee was not breaking with the past. The President also initially declined and delayed in appointing half of judges presented to him for appointment by the Judicial Service Commission (JSC).

The Constitution vests judicial authority in the Judiciary for exercise on behalf of the people. The signal sent by this act of declining and delaying appointment of judges by an independent constitutional body was obviously a bad one; it showed reluctance to create a new order in which the Constitution is supreme in regard to management of Kenya’s affairs.

The year also witnessed the arrest and prosecution of a blogger for undermining the authority of the state. There were several cases also filed in court challenging the lack of gender inclusivity in appointments made by the president.

Those filing the cases were passionate about the constitutional provisions, which leaders at both the national and county level continue to negate without any consequence. All these point to the failure by Jubilee to build a strong foundation for constitutionalism in 2015.

PUBLIC AFFAIRS

Tensions between the spirit of the Constitution and the practise governing the country spilled over to define the relations between independent commissions and some of the government ministries throughout 2015. The conflict between the National Lands Commissions and the Ministry of Land is perhaps the most visible because it is played out in the public.

Although the courts have directed on the responsibilities of both of them, it was not lost to many that this problem bespoke lack of leadership in giving direction on our land matters should be resolved.

Although the conflict was between the commission and the ministry, underlying this conflict is hesitation by the government to define land reforms or to come out clearly on what the government wants to pursue as land reforms.

The Ministry of Land has been presenting land reforms as provision of title deeds. The National Land Commission has presented land reforms as confronting the history of injustice in land distribution and grabbing.

But because the government has not come out with a clear vision on land reforms, the two institutions have remained at loggerheads. The conflict will not cool off any time soon as long as we remain incoherent about what land reforms mean in Kenya.

Related to this form of incoherence was also the conflict between the national government and the county level of government. The health sector remains the most affected by the conflict between the national government and the county governments over different issues in the sector.

The national government bought health equipment for county governments but the county governments objected to this because health is a devolved function and, two, there were no adequate consultations between the two levels of government.

The national government was clearly failing to follow the principle of interdependence and cooperative government envisaged in the Constitution. The national government was ‘thinking for’ the counties and even acting on their behalf without good reference to them.

These actions continued to undermine the object of devolution in many ways. To worsen the situation, the Summit, envisaged under the Inter-Governmental Relations Act, met only once in 2015. The law requires the Summit to meet at least twice in a year, but this did not happen.

This of course sent the signal that all is not well in the relations between the two levels of government. It was bad and should not have happened were the government keen on addressing challenges facing devolution.

Finally, the government hyped reform of the parastatal sector. We were told that we would have few enterprises and that the government would not have any interest in protecting loss making corporations. Citizens were also promised new leadership of the public corporations would include experienced and skilled individuals. Patronage would not have a place in the new space. This was not to be.

We got a mixture of skills and professionals, combined with patronage as the new qualities to guide the sector. This is far away from what was promised and what was expected. On this alone, the old order started creeping in to govern public affairs.

LEADERSHIP AND INTEGRITY

The best sign that the old order has triumphed is the pervasive corruption in the public sector. To begin with, early in the year the British newspapers publicised the ‘chicken-gate scandal in which a British firm induced members of the former Interim Independent Electoral Commission to issue a contract.

Some of those named here had already found their way into the Jubilee government and independent commissions. The government did not show any commitment to furthering the principles and values of the government; those in government continued to serve.

A government interested in creating a firm foundation for the future of the country would have relieved them of their duties just to send a signal that it is not business as usual. But as things stand now, it is business as usual.

Year 2015 therefore is one period that will be remembered for the return of the old order. It is a year where ‘business as usual’ became the norm of the Jubilee administration.

Some of those in government are blaming the Constitution for making it difficult for them to govern. They feel it is preventing them from doing what they would have done in the old days.

The Constitution is not the problem; things have changed and we must cope with the change. And the beauty with change is ‘if you do not change with change, you will be changed by change’.

Prof Kanyinga is based at the Institute for Development Studies at the University of Nairobi; [email protected]