By Eliud Owalo
I have seen certain articles in the local media to the effect that the Constitution of Kenya (2010) so watered down the powers of the President to the extent of inhibiting him in the fight against corruption.
Those making this argument fall within two broad categories. Some are out rightly ignorant as to the provisions of the constitution. Others are simply out to mislead the Kenyan people and attempt historical revision and reduction in advance. Both attempts must be strongly resisted. This tendency smacks of a desire to launch an attack on the constitution, an attack at once subtle and mischievous.
The constitution of Kenya 2010 set out to redesign the architecture of power and bring the country under the thumb of the rule of law.
So is the President powerless and under the constant threat of lawsuits? No!
Article 143 (1) states that â€œcriminal proceedings shall not be instituted or continued in any court against the President or a person performing the functions of that office, during their tenure of office.â€
Part two of that article insists: â€œCivil proceedings shall not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their powers under this constitution.â€
If one was looking for the most elaborate form of immunity, there you go. In fact it extends into impunity by giving him the licence to even abdicate his responsibilities. We are told you canâ€™t sue for things not done.
We now turn our attention to his power. At article 131, the President is both head of state and government. In most arrangements elsewhere, the President cedes authority over government to a Prime Minister.As head of government, he appoints cabinet secretaries and can dismiss, nay, fire a minister without recourse to anybody as per article 152 (5).As the substantive head of the executive branch of government, no officer is beyond his reach in terms of accountability.
Those claiming the President need some more supposedly nebulous powers assume that the President has the will, nerve and stomach to tackle corruption. They assume, as a matter of faith, that the President has a personal distaste and vengeful bile towards corruption. We canâ€™t assume. We must test his words against deeds.
Fighting corruption is politically risky. Corruption fights back. The dangers that lurk from within are more potent than those from without. Unfortunately, at the end of the day, corruption boils down to personal profit as opposed to national collective good. He who may conquer corruption will be on the right side of history. He must fight for the people and display statesmanship as opposed to narrow personal gain.
The President does not need the help of courts to bring his house in order. He can fire a cabinet secretary in one afternoon.All he needs to do is to put it in writing. He only needs to be constitutional. Let him merely follow the constitution, the law, the rule book. Is that too much?
Magesha Ngwiri complained as per SN Dec 19, 2015 that were the President to walk into a hospital and send the superintendent packing for some misdeeds, he will face hue and cry.
But doesnâ€™t the President does have a line minister to undertake such mundane tasks. He also has at his beck and call a Public Service Commission which must live up to the requirements of article 232 of the Constitution.
Every Public Servant, the President included, is bound by the values and principles of Public Service. These, among others include high standards of professional ethics; and efficient, effective and economic use of public resources. In fact, besides involving people in policy and decision making, a public servant must be responsive, prompt, effective, impartial and ensure equitable provision of services. He will always be called to account for any administrative acts done under his seal. Public service then is not for the faint hearted. It is a calling. A career grim yet fulfilling. Arduous but possible. All the President needs to do is to ensure that his charges understand and follow the dictates of the constitution.
These are the real and residual powers of the Presidency. He has adequate constitutional powers to fight corruption. What lacks is the will. Parts of the commentaries have not understood it! How bad, considering that it is penned in simple prose.