Time for Judiciary and Legislature to stand up and be counted

President Uhuru Kenyatta’s appointment of parastatal heads has drawn fierce criticism.

Some of the most frustrated figures have been members of Parliament. Now that they have made their case to the media, these legislators should turn their attention to making Parliament a more effective check on the Executive – as envisaged by the Constitution.

On December 27, President Kenyatta named 26 new parastatal chairpersons. Somewhat inevitably, former parliamentarians and retired civil servants figured heavily in the nominations.

Fifteen of the 26 nominees (58 per cent) lost power in the general elections of 2013.

But that is not the worst of it. Rewarding leaders who have been rejected by the Kenyan electorate is one thing.

Rewarding close allies who were rejected by the electorate is quite another. As a number of commentators have already observed, it smacks of the kind of cronyism that made Daniel arap Moi so unpopular.

The former head of the civil service, Mr Francis Muthaura, has been appointed as the chairman of the Lamu Port and South Sudan Ethiopia Transport (LAPSSET) Corridor Development Authority.

This, despite the fact that he was fingered as one of the instigators of post-election violence in 2008 by the International Criminal Court – a case that, according to chief prosecutor Fatou Bensouda, was only dropped because “the witnesses that had conveyed evidence have been killed or died”.

LOYALTY REWARDED

Other close Kenyatta aides have also been rewarded for their loyalty.

A Jubilee ally, Mr Daniel Wamahiu, has been appointed to head the Kenya Pipeline Corporation.

During the election he was TNA’s man-on-the-spot in Nyeri. His counterpart in Kisii, Samuel Nyangeso, will take over at the Kenya National Library Services Board.

There are more. The National Alliance (TNA) secretary general, Onyango Oloo, is to become the chair of the Lake Basin Development Authority.

This, it seems, was compensation for not getting a Cabinet position, which many had expected after Kenyatta’s victory last March.

Unsurprisingly, the nominations have generated criticism from a range of voices.

According to Igembe South MP Mithika Linturi and Maara MP Kareke Mbiuki the announcement represents the beginning of the end for Kenyan democracy. A number of MPs including Timothy Bosire (Kitutu Masaba), Richard Onyonka (Kitutu Chache South), and Kubai Kiringo (Igembe Central), have hit out at the way the appointments overlooked younger candidates and in the process consolidated Kenya’s gerontocracy.

Chief Justice Willy Mutunga responded by defending the list, arguing that character and record, not age, should be the criteria for selecting individuals for public office.

His point is well taken, although Kenyans would be forgiven for wondering why, given his concern for good leadership, he chose to criticise the protests of youth leaders and not the appointment of Muthaura.

Those hoping that the Chief Justice will lead the defence of the Constitution will also be disappointed that he failed to comment on some of the other problems with the nominations.

Most notably, despite having spoken so eloquently in favour of enforcing the gender quota set out in the Constitution last year, Mutunga chose not to comment on the fact that the vast majority of those nominated are men.

Encouragingly, criticism of the nominations has not only come from the opposition benches.

Nandi Hills MP Alfred Keter is a member of URP, and by extension the Jubilee Government.

But this has not stopped him from seeking to expose discord within the Alliance and alleging that the way in which the Sh1.2 trillion standard gauge contract was issued was fraudulent.

FOLLOWING IN THE FOOTSTEPS

Following the announcement of the President’s nominations, Keter spoke out again, claiming that, “it is clear that the President is keen to follow in the footsteps of his predecessors … Now those who have doubted what I have been saying can see for themselves.”

Although many of the complaints that have been raised have merit, it is unfortunate that so few of those who have hit out against the President have focused on the constitutionality of the process.

After all, this is the most effective way of challenging, and overturning, the nominations.

An important exception is Moses Lessonet, the chair of the National Assembly’s Committee on the Constituency Development Fund, who has alleged that the selection of former presidential candidate Abduba Dida was illegal.

Lessonet is right. Dida was appointed to replace Jennifer Barasa as the chairman of the CDF board.

According to the CDF Act of 2013, it should be the Devolution Cabinet Secretary who selects the chair of the fund from a list of four names approved by Parliament.

Dida’s appointment was not made this way, but was effected through a special gazette notice lodged by the President on December 31, 2013.

Not only does Dida’s appointment contravene the law, it is irregular. According to the legislation, the chairperson should “hold office for a period of three years”.

For reasons known only to the President and his advisers, Dida has only been appointed for eight months (till September 9).

This may seem a small matter. After all, Dida proved to be one of the more popular leaders during the presidential debates, when he raised smiles with his entertaining interventions, and he may well have survived parliamentary scrutiny.

But if the Executive is allowed to continually break the law over the little things, the rules of the game will be eroded to the point where they are too weak to safeguard democracy when it really matters.

To avoid this scenario, the Judiciary and the Legislature need to enforce the law.

RESPECT FOR LAW

Parliament has already shown a willingness to do this.

In October 2013, a preliminary report by the Lands and Delegated Legislations joint committee found that Mrs Charity Ngilu’s appointment of Mr Peter Kang’ethe Kahuho as the acting director of lands was unconstitutional, illegal, and unprocedural as the position did not exist in law.

In response, Ngilu rushed to pre-empt the report, revoking Kahuho’s appointment before there was time for it to be finalised.

A similar move to block Dida’s appointment would send a strong signal that the President may have little respect for the rule of law, but this does not mean that he can ignore it.