President Kenyatta has stirred hornet’s nest by vesting the renamed Provincial Administration with stately powers. Many a commentator has averred that the President is re-introducing the repealed Constitution through the back door. President’s men’s rejoinder is to deny and claim that His Excellency is acting in accordance with the current Constitution. They could as well be both wrong. Either of them could be right.
The reality is that the system of provincial administration WAS NOT recognized in the repealed Constitution. It operated under an ordinary statute – The Chief’s Authority Act, later renamed The Chief’s Act following IPG deal of 1997. It therefore follows that the first time the discredited system got a constitutional mention was in the Constitution of Kenya 2010. It provides that “Within five years after the effective date, the national government shall restructure the system of administration commonly known as the provincial administration to accord with and respect the system of devolved government established under this Constitution.â€
It is no secret that the Wako Draft of 2005 failed partly because chiefs, their assistants, district officers and district commissioners all surreptitiously campaigned against it fearing losing their positions of authority as the draft then was specific (Sixth Scheduled clause 23) that all the offices in the provincial administration would cease to exist within six months of the passage of that draft. Although that 2005 draft assured that the affected officers would be redeployed in the public service, the holders were not convinced.
As I have stated, these offices had no constitutional basis now. They would not in future, even if they were retained. So, the survival of provincial administration did not depend on whether Kenya enacts a new constitution or not. Even now it does not. Provincial administration as a system of governing is an administrative convenience. Its survival and character are determined by the exigencies of the Office of the President, period. Even the statutes do not expressly establish it. It is established by a controversial legislation that was enacted with virtually no public participation.
The system of provincial administration traces its origin to the colonial administration. It was created by the colonial authorities in their effort to effectively control the colonized peoples of the then East African Protectorate and ease the downward flow of orders right from the Governor to the village hut. During this period, its main functions were to collect taxes, enforce law and order and to pacify the natives in the colony. In addition, it provided judicial services (as all DCs doubled as magistrates) and participated in legislative matters in the Local Native Councils (LNCs) that were later renamed African District Councils – the precursors to the present county councils.
The LNCs were established in 1924 and played an advisory role to the District Commissioners, levied taxes and made by-laws for the agriculture and education sectors. Also put in place were the African Tribunal Courts, whose main function was to adjudicate disputes under customary law but in reality governed more by English Law and administrative supervision. The District Commissioner served as the “Court of Appeal†for the tribunals.
The colonial administration used such mechanisms as the “native researchâ€, in a bid to gather intelligence at the grass root levels and to ensure policies and laws were enforced and seen as locally made. This administrative technique was meant to legitimize colonial policies and leadership.
The Chief, then known as the Village Headman, was the prime instrument of the District Commissioners, then known as Regional Agents, for the implementation of colonial Government business. The Headman relied on ‘village bullies’ to exercise his authority and to effect colonial Government policies. These ‘village bullies’ took up the role of the Native Police (later renamed Tribal Police and subsequently the Administration Police) by enforcing and arbitrating as delegated by the Headman.
The system was inherited intact by the post-colonial administration and added further functions of development coordination. It has thus become so overbearing and omnipresent that it appears to be in the DNA of our polity. It thus follows that while Kenyans detest some of the practices of these administrators, they cannot imagine life without the chief.
The Constitution states in Clause 17 of the Sixth Schedule that the system will be restructured within five years of the new constitution taking effect. This is so that it ACCORDS TO AND RESPECTS THE SYSTEM OF DEVOLVED GOVERNMENT.
Part of this restructuring has already been done under the Constitution, the Administration Police, which was a key component of the provincial Administration system, was made part of the National Police Service under the National Police Service Commission. The Constitution also took a number of tasks that were within the mandate of the provincial Administration – like licensing of business, liquor licensing, plant and animal disease control, statistics and cooperative societies among others – and vested them in county governments.
President Kenyatta and his cohorts have cited security as one of the key national government functions. This is manifestly unconstitutional. Article 239 of the Constitution clearly defines the organs of national security. They are: The Kenya Defence Forces, the National Intelligence Service and the National Police Service.
Further, the National Police Service Act provides that the County policing Authority shall be chaired by the Governor or his appointee in charge of security. So, where on this earth does President Kenyatta derives powers of county security that he vests with the so-called County Commissioners.
But the most comical was his instructions to the commissioners to discipline teachers who are not doing their job. He should read Article 237(2)(e) of the Constitution, which states that the TSC shall exercise disciplinary control over teachers. Someone please remind the President that he swore to defend this Constitution  – not to dismantle it.