Fellow Kenyans, for quite some time now we have constantly voiced our concern that indeed the Jubilee coalition is not committed to devolution. President Uhuru and his deputy have not missed any opportunity to volubly assure Kenyans that they are devoted to devolution. However as the saying goes, action speaks louder than words. This act has clearly vindicated our long held view that this government is not committed to devolution.
1. The presidentâ€™s unilateral action of restructuring the maligned and archaic system of provincial administration is unconstitutional and negates the well-established principles of devolved system of government. The constitution vests sovereign authority in the people of Kenya which power is exercised by the people through their elected representatives. The people of Kenya overwhelmingly voted for the 2010 constitution and by dint of that act vested their trust and authority in the devolved government.
2. We wish to remind the president that reliance placed on Article 132 (3)(b) of the constitution and section 7 of the National government Coordination Act is exaggerated, misinformed and misconceived. Indeed it is an elementary rule of Constitutional Construction that no one Provision of the Constitution is to be segregated from the others and to be considered alone, but that all Provisions bearing upon a particular subject are to be brought into view and to be interpreted as to effectuate the great purpose of the Instrument. In a nutshell article 132(3)(b) must be read together with articles 1(3)(ba),6,10 and section 17 of the 6th schedule to the constitution. As it is now, the belated introduction of the provincial administration through the back door is unconstitutional and we will use all legal means available to reverse it
3. That section 17 of the 6th schedule to the constitution demands that within five years from the effective date, the national government should restructure the system known as provincial administration to accord with the new devolved system of government. The letter and spirit of this section requires a participatory approach in restructuring the provincial administration including public participation as envisaged under article 10 of the constitution. More importantly emphasis is placed on the process being undertaken by the national government. As it were there is no evidence to suggest that both the Senate and the National Assembly have been involved in restructuring provincial administration as contemplated under the constitution. The process envisaged cannot in anyway be discharged by a few bearcats in the public service. The presidentâ€™s actions are manifestly unconstitutional and this amounts to a flagrant violation of the constitution
4. That the presidents unilateral decree for payment of Ksh.1.4 billion to the architects of the Anglo leasing scandals is the lowest ebb in our struggle to combat corruption and engender prudent management of public resources in this country. The rational given by the president is at best laughable and at worst cynical. It must be remembered that in 2006, the president while serving as the chairman of the parliament public accounts committee (PAC) conducted investigations and filed a robust report that was duly adopted by parliament. At the core of the report was a solid recommendation that no payments whatsoever should be made to Anglo leasing contracts. Parliament has not varied that recommendation and it remains to date. We wonder what spiritual baptism the president has undergone as to irrationally demand the clearance of the fraudulent sums.
a) The arguments that nonpayment of the kshs.1.4B affects the capacity of the government to borrow internationally are neither here nor there. The bottom line is that the Anglo leasing contracts were fraudulent and therefore cannot be honored. The international community that espouses best business practices cannot in anyway compel the government to honor contracts that are tainted with fraud and illegalities.
b) The threat that Kenyaâ€™s embassies will be attached and put up for auction is a scare monger tactic by the government to coerce the country into honoring evil deals. There is no evidence even to suggest that Kenya owns those embassies. Most of them are rented and cannot be the subject of attachment. More significantly, our embassies are fortressed by the Geneva conventions and cannot therefore be liable to attachment and auction.
5. That attempts to honor Anglo leasing contracts violate Article 201 of the Constitution which sets principles that guide all aspects of public finance in the Republic. This includes the requirement that public money shall be used in a prudent and responsible way and further that there shall be openness and accountability including public participation in financial matters. The fraudulent nature of the Anglo Leasing deals further offends Article 227 on legitimate contracting and Article 10 which enacts national values and principles that bind all State organs, State officers, public officers and all persons whenever they make or implement public policy decisionsâ€. These include integrity, transparency and accountability.
6. It is regrettable that the president has turned into a rodent that is eating away the very core of the constitution that he swore to protect. We wish to remind him that our constitution is not a lifeless piece in a museum. We will use all means possible at our disposal to defend it and secure public interest.
7. It is our considered view that the presidentâ€™s decree in favor of Anglo leasing is inadequate even to invite our conscience, impotent to warrant payment from the exchequer, ridiculous for for sanitizing fraud, scandalous if brought forward to earn public support and monstrous if to ruin our already strained economy.
Party Leader, WDMK
Hon Moses Wetangula
Party Leader FORD-K
Hon Sen Anyang Nyongâ€™o
Ag. Party Leader ODM