Executive determined to bring back the discredited imperial presidency

TNA secretary general Onyango Oloo addresses journalists on May 19, 2014. Rodgers Mogaka Mogusu had challenged the legality of Onyango Oloo holding on as secretary-general of TNA party at the same time as holding public office as chairman of the Lake Basin Development Authority. PHOTO | EVANS HABIL | NATION MEDIA GROUP

What you need to know:

  • Simultaneously, through actions and directives, the Executive has been deliberately circumventing the carefully worded procedures and intent of the Constitution.
  • The flagrant disobedience of court orders on increments for teachers, trying to force the recruitment of police despite the courts finding that the recruitments were irregular and corrupt are prime examples.
  • Is this regime using (il)legal advice from quarters that are not official? If so we have a crisis, as it means there is a secret shadowy mafia running Kenya contrary to the Constitution.

It is getting out of hand. Every so often, a new Bill is published seeking to accumulate more powers and discretion in the Executive.

There are the proposed amendments to the land laws that would shift powers from the independent National Land Commission to the Cabinet Secretary for Lands; the bills aimed at giving the presidency the power to hire and fire the top police echelon; the provisions to vest the hiring and firing of the members of the Independent Police Oversight Authority in the Executive and away from the Public Service Commission; the effort by “Executive-minded” Senators to restore the already-declared-unconstitutional provisions back into the Security laws; and the attempt to shield the military from independent financial scrutiny, for instance.

Simultaneously, through actions and directives, the Executive has been deliberately circumventing the carefully worded procedures and intent of the Constitution.

The flagrant disobedience of court orders on increments for teachers, trying to force the recruitment of police despite the courts finding that the recruitments were irregular and corrupt, and the opaque appointment of parastatal board members without the involvement of the Public Service Commission are prime examples.

To be blunt: These are naked and backdoor attempts to weaken — some may say overthrow — the hard-fought Constitution and take us back to the era of the Imperial Presidency.

BE TRANSPARENT

If this regime thinks that the Imperial Presidency is best for Kenya, or it wants to remove the two term limit, why not do this properly, openly and legally but introducing the necessary constitutional amendments?

In fact, it can be argued that these backdoor efforts are worthy of impeachment as civilian coup attempts seeking to overthrow the Constitution; but this is unlikely to happen since our politicians (and many of us, too) are impervious to obvious objective causes, preferring the lens of the tribe, personal benefit and power.

Another example: In early September this year, Justice Isaac Lenaola made a landmark decision in the case of Rodgers Mogaka Mogusu vs. George Onyango Oloo, TNA and another, which for some reason escaped media attention.

Rodgers had challenged the legality of Onyango Oloo holding on as secretary-general of TNA party at the same time as holding public office as chairman of the Lake Basin Development Authority.

Judge Lenaola ruled that Onyango Oloo was disqualified from holding a position in a political party, confirming an earlier Supreme Court decision as well as another similar High Court decision.

Last time I checked, Onyango Oloo was still the secretary-general of TNA.

ROLE OF ATTORNEY-GENERAL
All these shenanigans raise questions about the role of Attorney-General Githu Muigai, who should be guiding the regime on constitutionalism, and the rule of law.

What has he been advising? Given his vast experience studying, teaching and practicing law, we should assume that he, too, sees these illegal machinations.

One, or all, of three things could be happening here: First that he is dispensing with the proper advice but is being ignored; that his not giving the right advice; or that he is not being asked for advice.

But whatever is going on, it is clear is that a true professional with integrity would have resigned by now, especially if it is that his advice is being consistently ignored or he is not being asked for it.

But then, this is Kenya, and to paraphrase the late Samuel Kivuitu after messing up the 2007 elections, when have you ever heard of a Kenyan resigning even when they mess up?

IS IT WORTH IT?

Is this regime using (il)legal advice from quarters that are not official? If so we have a crisis, as it means there is a secret shadowy mafia running Kenya contrary to the Constitution.

Sadly AG Muigai is seemingly in the same position as his predecessor, Amos Wako, starting off with lots of domestic and international respect for their legal minds and experience, but then apparently unable or unwilling to ensure that the right legal course is followed.

By hanging on, he harms his reputation. But then again, maybe it is all worth it in some way.