By Tony Moturi
Most African states are said to be graves of beautiful constitutions, which at promulgation stage, raise the spirits of the citizens but as implementation sets in, they always disappoint as they fail to bring the expected reforms. This illustrates where Kenya is.
The independence of commissions created under the constitution is under threat barely five years after ushering in the second republic. The institutionalisation of these commissions has been a subject of debate as opinion is divided as to whether they were supposed to be in the supreme law or provided for under a subsidiary legislation.
Proponents for the inclusion argue that in Kenya, the nature of the political class canâ€™t be trusted and every issue that seem contestable had to be catered for in the constitution hence the bulkiness of the Charter.
This has served to insulate the commissions from being undermined by forces within and without government. Under the law, the commissions have an obligation to protect the sovereignty of the people, secure the observance by all state organs of democratic values and principles as well as to promote constitutionalism.
As the old maxim make your bed and lie on it gains currency, the constitutional commissions are becoming a nightmare for policy makers as well as politicians. Those who perfected the art of running the show without due regard to laid down procedures have woken up to a poignant reality that of the institutional bureaucracy designed to keep them within the confines of agreed procedures and processes.
It seems the merchants of the old order have reignited their vigour as of late there has been an onslaught from all quarters targeting various commissions.
Since promulgation of the new laws, the Constitution Implementation Commission has over time raised the red flag on laxity of various government bodies in generating the necessary bills in accordance with the set timelines. A number of bills have been forwarded to the National Assembly without the scrutiny and approval of the CIC.
The CIC has in most cases pleaded with various organs of government to either fast track some bills or engage other stakeholders in formulation all in vain. This has led to the passing of weaker laws such as the Ethics and Anti-Corruption Act, the Leadership and Integrity Act among others.
Whereas you find the constitution with water-tight provisions, on the flip side, the subsidiary legislation is weak hence defeating the purpose of that constitutional provision. CICâ€™s office term comes to an end later this year and the Commissioners have publicly announced they wonâ€™t be seeking an extension. Kenyans will be left to watchdog for themselves.
The 11th Parliament having inherited the culture and precedential notoriety of previous Houses where fixing membersâ€™ salaries and emoluments was the second business on the order paper (after that of electing the speaker and the deputy). By virtue of being called state officers; a big title anyway, MPs fall under the ambit of the Salaries and Remuneration Commission (SRC) whose ToRs include reviewing their salaries.
When the SRC gazetted their salaries, the MPs were up in arms forgetting their Jubilee â€“ CORD rivalry albeit for a short period to fight for what they termed their common interest. Others went as far as calling for the disbandment of the SRC. When matters came to cropper realising how difficult it was to eject a constitutional commission from office, the MPs sought solace in amending sections of Article 260 of the constitution thus removing the designation of members of parliament, Judges and magistrates and the Members of County Assembly from the purview of SRC. This in essence will defeat the whole purpose of creating the SRC and may lead unsustainable salaries which will in effect translate into a bloated wage bill and economic stagnation.
Parliamentary committees are embroiled in a race to the bottom on matters rent seeking. Reports are doctored to suit the interests of the paymaster. The Parliamentary Accounts Committee and the Agriculture Committee have been singled out as leading the pack on graft.
The Kenya Police is undergoing reforms. Various organs were created to realise this and among them is the National Police Service Commission mandated with the recruitment and appointment of senior police officers and their promotions as well as disciplining holders of the said offices.
A clique of some powerful politicians who profiteered from a disparaged police force is counting losses in the reforms that are underway threatening their very existence. A plot was hatched to strip the NPSC all its powers and vest them in the Inspector General of Police whom can easily be manipulated as opposed to the Commission. The amendments to the National Police Service Act were modelled contrary to Article 239 (5) of the constitution requiring security organs to be under a civilian authority.
The greatest contradiction in the whole discourse is the suggestion to empower the person of the IGP at the expense of his employer the NPSC where he sits as a member. This will effectively render the NPSC ineffective and redundant.
The National Police Service Commission has been reduced to a conveyor of Executive orders as far as police reforms are concerned. Matters get complicated by the mention of its chairman and commissioner in the infamous list of shame. One wonders how they are supposed to tackle graft within the Police Service when the very â€œhigh priestsâ€ are accused of the same.
The National Land Commission whose appointment to office heralded a new order in Land Management in the country is still struggling to find its footing. Though the Cabinet Secretary is in charge of policy formulation and direction, the NLC is mandated to adjudicate all matters related to public land. Sadly, the Commission has been reduced to a paper tiger fighting for space and relevance at Ardhi House.
The Independent Electoral and Boundaries Commission has not been spared either as it is yet to recover from allegations of mishandling the March General elections. Right from procurement, the voting process and counting has been marred in controversy with latest being the â€œchicken-gateâ€ scandal where current and former officers under the defunct IIEBC received kickbacks from a British Company.
The Commission was bound to fail having ceded its independence to the Executive arm of government to determine whom to purchase the election equipments from and under what terms. One only needs to look at the perplexity surrounding procurement of BVR kits aided by the national government where last year the same government had instructed the IEBC to hand over the over 45,000 laptops used in the elections to the Ministry of Education to support the laptop scheme which has since metamorphosed into acquisition of tablets.
The Ethics and Anti-Corruption Commission is the latest commission to feel the heat. The events culminating in the suspension of the EACC Commissioners can only be borrowed from a Hollywood movie. Kenyans have been entertained to an Executive fiat that has even influenced the Legislature to do their bidding bringing into scrutiny of the Independence of Parliament in over sighting the Executive. The proceedings leading to the adoption of the petition seeking the removal of EACC Commissioners is a clear demonstration of how tyranny of numbers and the independence of Parliament to oversight the Executive can be reduced into a voting machine.
Among the State institutions post August 2010, the Judiciary is regarded as the most reformed institution but recent intrigues within the Judicial Service Commission on the proposed nominees paint rather an institution that is yet to get off the yoke of bureaucrats, executive manipulation and wheel-dealers.
This article will not be complete without mentioning the opposition. The government-in-waiting that is supposed to oversight the ruling coalition is at best rudderless and busy fighting turf wars a clear manifestation that it lacks strong leadership and agenda in and out of the House.
This political elitism that has exhibited a profound disdain of the commissions is not healthy in the pursuit of a just and equitable Kenya for all. If as a country we need to unshackle ourselves from the category of states that are struggling to cultivate a constitutional culture and severe the attachment with their undemocratic past then the various institutions and individuals that have been empowered to oversee this process should provide the necessary ideological, political will and civic sensitization aimed at reforming and transforming the culture of the people.
The Writer is a Public Policy Analyst and managing partner at Policy Options Kenya