These unwelcome manifestations of personal rule are 12 years too late

Last week, Dr Fred Matiang’i ordered the arrest of a school headmaster in Tot, Elgeiyo-Marakwet County, after his students were terrorised by bandits who ambushed their school bus as they returned from a trip. 

Matiang’i’s directive was based on another directive forbidding night travel by school parties, but it had been framed as though the hapless mwalimu was somehow implicated in banditry, so that his apprehension was some long-awaited silver bullet to the insecurity menace in the ‘valley of death’. 

A couple of days later, bandits struck again, wreaking further havoc and misery in the sorrowful lives of a people long resigned to official neglect and loud but empty displays of state security and power.

Staging performances of ministerial zeal is a ritual of long standing that is taken rather seriously by the wonderful people at the Office of the President. 

Many ministers have visited conflict-prone regions, given stern warnings and laid down ultimatums to bandits to surrender their arms and so forth, or face the full force of state might. 

The farthest these theatrics go is the news bulletins, and then life (or in this case death) goes on. 

Nevertheless, Kenyans are expected to be grateful that a governmental VIP has found time off his busy schedule to fly down and deliver a rant for the cameras. 

His ebullient deportment and stentorian tone are supposed to signal the seriousness of the state’s resolve and provide comfort and security. The very person of the official is intended to be an instrument of state’s potency, and his gestures deemed to indicate governmental intent.

This construction of state authority is underpinned by the idea that the person of an official is the embodiment of the institution he represents. 

An official’s capacity therefore extends beyond acting as the authorised representative of the institution, to the assumption of powers to project institutional imperatives even in the personal domain.

National values 

This feature of personal rule finds formidable anchorage in the conducive frameworks of totalitarian regimes. 

Patrimonialism hews quite close to this expression of institutional and state power.

The very framing of the Constitution of Kenya 2010 is self-conscious, deliberate and painstaking in retiring every conceivable manifestation of patrimonialism. 

It recognises unequivocally that all sovereign power belongs to the people and can only be exercised with their consent and authority. Power must, therefore, be exercised by the people’s agents responsibly for their benefit and must never be deployed to harm, prejudice or abuse them. 

For good measure, this power is dispersed to various arms of government and other independent institutions, and also devolved to the county government system.

Interactions between holders of state power, other institutions and the people is coordinated to optimise Kenya’s constitutional bandwidth by means of the national values and principles of governance. 

In brief, it is not feasible to conflate state authority with personal power, or dispose of it like a private estate.

More than a decade under the new constitutional dispensation, politicians still deliver themselves of irrepressible patrimonial effusions with regard to the exercise of state authority. 

Likewise, many of their supporters evince exuberant approbation of these civic and juridical redundancies. 

Perhaps old habits die hard, for none other than Uhuru Kenyatta himself – the first president to serve his term under the Constitution of Kenya 2010 – is on record committing this remarkable indiscretion.

Statemanlike goodwill 

Kenyatta has been reported to have declared on more than one occasion that he has no intention of handing power over to a thief. First of all, at the end of his term, he actually has no power to hand over or otherwise dispose. 

His constitutional tenure expires ineluctably with the effluxion of time, after which all state authority entrusted to him lapses. 

That is why a president-elect does not take over, and an outgoing president does not hand over ‘power’.

The president-elect assumes office as president upon being sworn in before the Chief Justice. There is no role in the proceedings for an outgoing president, whose presence and participation is, strictu sensu, a matter of chivalry and statesmanlike goodwill. 

However, the optics of peaceful transfer of power are absolutely essential to signal democratic consolidation and state maturity. 

In any event, nemo dat quod non habet : one cannot give that which one does not have! 

The commonsense of the people’s absolute and exclusive ownership of sovereign authority does not provide for the notion of its transmission between an outgoing and incoming president. 

An intention to decide whom to hand over power to is, therefore, a most profound constitutional absurdity.

A lot of the impetus for the Building Bridges Initiative (BBI) arose from a confluence of yearnings for the power of patrimonial totalitarianism whose time is long gone. 

Sovereign authority cannot be transmitted as a patrimonial endowment, and state power is not a matter of personal preference or individual propensity.

The writer is an advocate of the High Court and a former State House speech writer. @EricNgeno