Following the ruling by the Speaker of the National Assembly on the admissibility of the nominees for the position of the Chief Justice, Attorney General, Director of Public Prosecution and the Controller of Budget, it is clear that the person Kenyans have had a lot of hopes on decided to be intimidated by threats of a censor motion. It is unfortunate that the good Speaker of the National Assembly, an Advocate of the High Court, is setting a dangerous precedence by making a ruling that is clearly unconstitutional without a blinking of an eye. It is indeed a sad moment for democracy in Kenya as the Speaker has clearly arrogated to himself the position of the Chief Justice, by declaring that even the High Court Ruling is inconsequential in as far as his legal opinion is concerned.
Allow me to shed some light in putting the issue in perspective. The newly promulgated constitution of the Second Republic of Kenya provides for three arms of government, these being the conventional branches of the Executive, legislature and judiciary. Each of these arms has a boundary of where it reaches. The work of the legislature is to make laws and policies, and to provide a checking system of the operations of the executive. It is the responsibility of the judiciary to offer redress whenever justice is denied to any citizen or a section of citizens in Kenya, whether by the state, state agency or a non-state entity. Finally, the executive arm is responsible for the day-to-day operations of state, checked by both the judiciary and the legislature. Plato argued that there can be happiness when each element of the human mind is contended with its position and therefore work in harmony for the fulfilment of state functions.
It therefore came as a surprise that the Speaker of the National Assembly Kenneth Marende, bowing to pressure and threats from the Party of national Unity under the leadership of President Mwai Kibaki, made a ruling as to the admissibility of the irregularly nominated names to the positive. Some members from the President’s side had threaten a censor motion against the speaker should he rule against admissibility of the four names. The whole nation waited with bated breaths for two days to get the speaker’s ruling, at the same time the High Court was to give its ruling on the same issue. Initially, the Judicial Service Commission had cast aspersions on the legality of the President’s move in forwarding the names of the nominated candidates without due consultations as required by the constitution. It has sadly been the practice of President Kibaki to abuse the loopholes in the Constitution whenever his parochial interests are at stake, in total disregard of the spirit and letter of the law. Not so long ago he appointed Keriako Tobiko as the Director of Public Prosecutions. In August last year, Kibaki delayed the promulgation of the Constitution by using frivolous excuses even if form the same constitution. The very president, who is accused of presiding over the country illegitimately, refused the Prime Minister to be Secretary of Cabinet in the spirit of a coalition Government. The appointment of the CID Director was equally controversial as was the appointment of the Leader of Government Business and Chair of the House Business Committee. The President has refused to crack the whip on corrupt elements in his Government, and an excuse on this would be that no cases are ongoing on some of his lieutenants. This means that the President is reactive as opposed to proactive, and that he would wait for others to find fault for him to react.
The ruling of the Speaker is a clear indication of impunity on the legislature. The precedence being set on the basis of “interference from other arms of government” may be applied by the executive arm. It is imperative that the speaker of the national assembly recollects himself and rectify this anomaly before it is too late. The respective parliamentary committees need to be adequately advised, to find flaw in the original ruling by the Speaker. Impunity is simply defined by exercising authority in disregard of the law. It has been a cancer in the governance of Kenya since independence, where government officials in their respective capacities make decisions that are legally questionable, but are let off the hook because the are merely carrying out “orders from above.” This was the excuse given by the individuals netted in the country’s biggest economic sabotage operation, The Goldenberg Affair. It is also evidenced in the police and security forces where extra-judicial killings have been done in the guise of “orders from above.” The new constitutional dispensation is expected to sanitize the governance and politics of Kenya, starting with the highest echelons of power to the grassroots, yet the Speaker of the national Assembly works to retard the advancement already recorded.
In his lopsided ruling, the Speaker claimed to decline to respond to a Constitutional question asked by a Member, on whether it was constitutional for the President to nominate members of the constitutional offices without adequate consultations. By shying away from giving guidance for fear of being censored, the Speaker actually ruled in favour of the President’s unconstitutional nominees. Whether the nomination process was constitutional or not, the four names are already stale, based on the public debate and partisanship that has gone on. The state officers, if appointed, may not carry out their responsibilities with the desired impartiality. A clean set of nominees should be forwarded. In the legal parlance, it is a theory that justice should not only be done, it must be seen to be done. This connotes a political as well as legal process: legal for purposes of balancing and political fro mobilization, and for confidence of the citizenry to the justice system. It is in the public domain that the Attorney General is opposed to the process used by the President to nominate the said officers. The Attorney General is the Government’s chief legal advisor, yet he signed a document critical of acts of the government! Others who questioned the nomination process are the judicial service Commission. Yet despite all these, the Speaker of the National Assembly finds it prudent, in what some media houses have termed “solomonic ruling” of the Speaker. I fault this description, and instead term it as “selfish” ruling.
As the debate on the ensuing events rage, it is important to point out the concept of separation of powers. An ancient Greek philosopher called Plato came up with his argument on what constitutes a just society. He opined that a just society exists where each organ of the society carries out its duties with contentment. He argued that society operates like a human being. The human system, according to him, has three parts: the rational, the spirited and the appetitive elements. For him, there is harmony and inner peace when each of these parts plays their roles. He describes the rational element as the highest, which ought to keep the other two elements under check. However, this element cannot operate in disregard of the other two. There is always a symbiotic relation. The second element, the spirited element, is the element of courage. In a political system, this is the security apparatus. Finally, is the appetitive element, comprising the commoners. Should any of these elements overstep its borders or performs below expectations, then order will be disrupted, to result into anarchy. It happened in the 2007 General Election where the three elements became mixed up with the philosophers, princes and the priests (the three Ps) failed in their societal roles as to take the roles of their fellows. The world witnessed a degeneration of a state into anarchy, throwing into pieces the vested interests of the western economies.
It is this state of affairs foreseen by Plato that Mr. Marende, in his wisdom (or otherwise) wants to bring Kenyans. One unique thing within the legal parlance is that precedence is a source of law. It follows that some elements of Marende’s ruling are fresh entrants in the books of law and some parliaments within the Commonwealth may refer to it. How myopic, then was Speaker Marende as he made his ruling! Kenya has gotten into books of history for initiating a power-sharing governing following a stolen election. It (Kenya) exported a failed system to Zimbabwe, and could do the same to Ivory Coast. Now the Speaker wants to export a selfish ruling to colleagues in the Commonwealth.
It should be remembered that the Speaker’s ruling on the nomination of the leader of Government Business and Chair of the House Business Committee some time back was met with positive comments by all when he (Speaker) declined to be dragged into the wars and power plays within the Executive by declining to make a ruling. He instead took over the leadership of the House Business Committee until the time when the President and the Prime Minister would agree on one name to the position. Indeed, this ruling was not expected. Many had thought the Speaker would rule in favour of his party, the Orange Democratic Movement, whose leader is the Prime Minister himself. Were it constitutional for him to rule in same manner this time round, Marende would have declared himself nominee for the Chief Justice, Attorney General, Director of Public Prosecutions, and Controller of Budget. This indicates that Mr. Marende is power hungry, and a power maximiser per excellence. He has come out on many cases in defence of the independence of the legislature, on many occasions drawing justification from the interference experienced during the Moi era. This is in error because it creates a wrong impression that parliament is the only organ, supreme as to control the other organs. It is indeed abuse of democracy to have Parliament arrogate itself functions of other arms of government. The control of the Constituency Development Fund (CDF) by parliamentarians is a sign of deviation and a mockery of democracy. This is an executive function, which should be under check by both the judiciary and legislature. For parliamentarians to take over its management is a political misuse of power as these very managers will use the Fund to further their political ambitions, thus lacking in fairness in distribution of the funds. With the qualifications of some of these members of parliament, anomalies are expected. For one to qualify as a candidate for parliament, literacy is gauged on ability to write and speak in English and Swahili: a standard five dropout, in the Kenyan case is eligible to contest a parliamentary seat, so long as s/he is at least 21 years.
Besides taking over executive functions through resource distribution, the legislature has shown that it can arm-twist the executive to favour the legislature in execution of its responsibilities. This may happen through blackmail from parliament. In the debate over the eviction of squatters in Kenya’s biggest water catchment area, the Mau Forest, the Prime Minister, being the Principal of the two responsible for the conservation of the resource, was threatened of censor by parliamentarians from the Rift Valley region. This is because the eviction was interpreted as a political game by some members of Parliament. It has been a problem in Kenya that the Prime Minister’s moves are seen from the political angle, and from the 2012 succession game tricks as politicians strategise for the General Elections scheduled for 2012. His erstwhile enemies read politics from policies and processes, and strategize on political duel rather than development plans. Parliament thus is reduced to a House to settle political scores both real and imagined. It has led to some members of the executive looking at the government agenda from a point of political mileage rather than development strategy. However, this is not only with regard to the legislature against the executive. Even within the executive itself, it has happened. When Eldoret North MP William Ruto was Minister for Agriculture, his innovativeness and aggressive approach, hands-on style of administration caused his transfer to a less vibrant Ministry of Higher Education. Mr. Ruto solidified his base in the Ministry by moving to all corners of the country in his bid to reform the agricultural sector in Kenya. Some allies of the Prime Minister warned that Ruto’s rising popularity with the people posed a political danger to the Prime Minister. They read sinister motives in Mr Ruto, considering that the Eldoret North MP had fallen out with his party boss. Ruto was disgracefully transferred from the Ministry of Agriculture to a “less prestigious” “white-collar” Ministry of Higher Education, swapping places with the Aldai MP and fellow Kalenjin and diplomatic historian Dr Sally Kosgey.
In conclusion, it is important that state officers consider the larger interests of nation in their actions, decisions and principles. This is the time that Kenyans should be very keen, as it is the formative stages of the implementation of the new Constitution. The nation is still experimenting on the new-found constitution and therefore running a risk of establishing wrong precedence. The actions of the first Chief Justice will be instrumental in the justice system in the country for years to come. This could be the reason why the principals are flexing their muscles to have people who share in their personal philosophies get senior state offices. To give an example, a task force mandated to consider the operations of the county system is chaired by a university don Dr Mutakha Kangu, of Moi University. The law lecturer is an ardent advocate of a federal system of governance, a structure highly regarded by the Prime Minister. The country waits to see the recommendations on the nature of the county governments and how they relate to the centre as proposed by this task force. As the head of the legislature, Speaker Kenneth Marende is yet to make many other rulings, still in line with the process of implementing the Constitution of the Second Republic. Should he mess up as he has done with the present ruling, then the public should demand his replacement, noting that his rulings are for the present generation as well as posterity.
