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National government should set example by obeying the law

Friday July 19 2019

Senators, Milimani Law Courts

Senators marching to Milimani Law Courts in Nairobi on July 18, 2019 to challenge the constitutionality of a raft of bills passed by the National Assembly without their input. PHOTO | EVANS HABIL | NATION MEDIA GROUP 

MUTUMA MATHIU
By MUTUMA MATHIU
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A government, I have written time and again, is created by law. Without the law, there would be no government. A government can’t exist outside of the law, not in a democratic society based on the consent of the governed anyway. So in my mind, it makes no sense to hear that a government has acted contrary to the law.

COCKY AND LAWLESS

The Budget and Appropriations Act was passed by Parliament and assented to by the President before two pieces of revenue sharing legislation, which should have come first: Division of Revenue Bill and the County Allocation of Revenue Bill. Why, you wonder.

Senators, with whom the public may have little sympathy, that House being a composition of the usual politicians with an eye to the main chance for making money from the public, profligate, entitled and ungrateful. The Senate has gone to court to challenge 24 laws, which were passed by the National Assembly without the involvement of the Senate. Senator Kithure Kindiki told the judge that the National Assembly and the Executive have, basically, gone rogue. Why, you wonder.

Jubilee is a watermelon, devolutionwise. During the day it preaches the centrality of counties in the future and prosperity of the country. However, deep in its heart of hearts, the party and the government it formed in 2013, pines for days gone by, when bureaucrats, acting alone and many times in self-interest, took decisions about everyone in the country. The centre knows best, was the assumption.

But we moved on. In 2010, we completed and approved a Constitution that required resources to be applied at the base. And we have seen the benefits — and drawbacks — of this system and we are convinced that the merits far outweigh the demerits. True, MCAs take way too many trips, are in many cases absurdly corrupt and some add no value at all. True, some governors couldn’t run a chicken coop, don’t pay their debts, are petty and dictatorial.

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But we have also seen services taken to places which had seen little development in 50 years. We have seen the pride and participation of ordinary citizens in the government of their communities. We have seen frugal county governments implementing projects that put to shame the national government and its vaunted experts and massive resources. We have seen these things and we are pleased.

We can’t go back, we don’t want to go back.

You know, we have lived through pretty tough governments. When the Kibaki government came to power in 2003, they were cocky and lawless for a while. They arrested senior journalists at the Standard, raided the place using hooded goons and put the Margaryan mercenaries in the streets to intimidate Kenyans. In the end and on average, Mr Kibaki turned out to be a moderate, tolerant, if somewhat detached, ruler. A good guy for development, but not quite good at keeping the law, as the degeneration of issues in 2007 attested.

STRUCK TERROR

Mr Moi was generally a bad guy. He preferred the iron fist and caused powerful folk to dance around like toys. He struck terror into the hearts of politicians and created and destroyed them with a terrifying nonchalance.

But when I worked for Mr Moi’s newspapers, I was pleasantly surprised to learn that he had quite a thick skin. Our reporting pushed the envelope, went to places it had never gone before. He only ever called one day, and that was only to confirm that we were not going to misquote a sensitive statement he had issued on Bomas.

Maybe my recollection does not serve me right, but if I’m not wrong, the clever fellows in Mr Moi’s circle ensured that even the most obnoxious of his decisions were cloaked in a veneer, however thin, of legality. He did not disobey the courts, he just ensured that the courts did not rule against his wishes. Battering the courts to submission is a very bad thing, of course, but then so is refusing to obey court orders.

It is good that the Senate and the governors have chosen to take their grievances to the courts and not foment riots in the counties to bring the national government to heel. This is a mature and civilised way of negotiating and resolving disputes. Maybe the government can learn a thing or two from this approach and demonstrate a renewed commitment to the rule of law.

* * *

On March 26, 2001, students set fire to the dormitory at Kyanguli Secondary School in Machakos. Sixty seven students died. I covered that tragedy as a cub reporter. Years later, I can still remember the smell from that school; I can still feel the anger, walking through the dormitory, charred remains of children scattered around.

The following year, 63 parents of the children who died sued the school for neglect. They won. And 18 years later, on Wednesday, they were paid Sh54 million. It’s not much, it does nothing to replace the children whose future was so brutally cut short. But it is an acknowledgment of wrong, an attempt at justice.

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