New Law: It’s time for a paradigm shift in our implementation tactics

With the new Constitution now in force, the focus has turned on implementation. At the policy level, Cabinet and technical committees have been formed.

Institutions are reviewing their mandates. Bills are rapidly being drafted. Local government and provincial administration are quietly re-engineering themselves.

On the ground, the new Kenya now means localised governance, resources and accountability, new livelihood opportunities, political representation for marginalised groups, and equal enforcement of rights and freedoms.

What is wrong with this picture? At one level, implementation means “enactment and operationalisation”; at another, it means “enforcement and results”.

This disconnect is epitomised in our stuttering progress in the past. As we enter the new era, it is time we pursued a new implementation paradigm built on four pillars.

The first is national ownership. In recent articles, Prof Pal Yash Ghai and Dr Willy Mutunga warn against implementation “capture” by politicians and bureaucrats.

The private sector and civil society promise diligent monitoring. The implementation pace continues to be dictated by the government. Counter-reform, a focus on the mechanics rather than substance of reform, prevails.

Now is the time, not for monitoring, but for participation, consultation and true partnership. It requires mindset change by Kenyans, and attitude change among our leaders. Ownership means that implementation is a national, not a government, “project”.

The second, is strategic focus. While the spotlight is on the 49 laws in the Fifth Schedule, public institutions are now discovering that they must thoroughly review their policy, legal, regulatory, institutional, administrative and operational frameworks.

This applies to all of our 600-plus laws.
Further, the Serena Agenda is incomplete.

• The militia problem (Agenda 1),
• IDP resettlement (Agenda 2) and
• Agenda 4 (now with constitutional backing) are pending.

New electoral boundaries must be drawn. Then there is our social covenant, dealing with our past.

Sustainable peace requires the Truth, Justice and Reconciliation Commission and the International Criminal Court justice for victims of past human rights abuses and violations.

Finally, as President Kibaki recently said, “we now have erected two pillars to secure our advancement to the next level…Vision 2030 . . . the Constitution of Kenya 2010. The third pillar is Social Vision.”

In the past, these priorities would have been treated disjointedly. Now, we must “chew gum as we walk the stairs”. A strategic focus means we “implement” the Constitution, “complete” Serena and our social covenant, and effect a new Social Vision even as we pursue Vision 2030.

This requires continued consensus within the coalition government (Agenda 3).
The third is smart tactics.

The tight implementation deadlines are already creating a rush to action – on laws, appointments and administrative arrangements – lacking focus, inclusion and consultation.

Though strategic focus gives us a road-map, we need smart tactics to embark on the journey. Yet, so far, the only tactical instruments being mentioned are parliamentary laws and executive procedures.

In addition to policies, laws, regulations and administrative action, tactical instruments include mechanisms for advocacy, outreach, civic education and engagement, public service culture change and re-training, as well as new processes, systems, working tools and infrastructure.

A focus on this wider range of instruments would create a valuable participatory role for civil society and the private sector.
The fourth is managerialism.

By avoiding a disjointed approach, strategic focus and smart tactics will give us an integrated implementation “package”. For example, the “package” on counties would comprise enabling policies, laws, regulations, structures, staffing, skills, systems, infrastructure, other service delivery requirements and financing arrangements.

Managerialism is then about timing, financing and monitoring. Implementation initiatives must be prioritised and sequenced, fully costed and transparently financed.

Open and participatory monitoring mechanisms will help us track progress. Ultimately, managerialism will combine ownership, strategic focus and smart tactics to create a realistic implementation path towards the new Kenya.

So, given our latest 18-24 month window, now is surely the time for a new implementation paradigm, before we end up wondering why “the operation was successful, but the patient died”!

Mr Kabaara is an institutional reform specialist and a management consultant. (dkabaara@gmail.com)