10 years of Constitution: Time for Uhuru to right the wrongs

 The President has the most important responsibility for respecting national values and principles of governance, including – critically – good governance, integrity, transparency and accountability. He or she must demonstrate respect for the people, bring honour to the nation and dignity to the office, and promote public confidence in the integrity of that office. Most importantly, he or she has “the responsibility to serve the people, rather than the power to rule them”.

The President is also Commander-in-Chief of the Defence Forces and Chair of the National Security Council, and also chairs the National Security Council and appoints the five highest ranking officers in the Defence Forces.

The President appoints Kenyan ambassadors to other countries, and while many come from the public service, some are from outside — opening the way to use of political patronage. Presidential choice has to be approved by Parliament — which refused to approve one appointment unless the candidate gave up US citizenship — but does not curb patronage. Negotiating treaties is regulated by law, rather than left to the President alone, and the final act of making Kenya bound by treaties must be by Parliament. These rules are important, particularly because under the Constitution treaties become part of Kenyan law.

Where things need improving

Many people regret the adoption of an executive presidential system by MPs in the closing stages of the constitution making process, because of past experience with autocratic presidents. But the powers of the President are supposed to be constrained by the Constitution. Uhuru Kenyatta has struggled to respect limits on his power and to appreciate the extent of his presidential responsibilities to the people of Kenya, as the examples below show.

The Cabinet

Appointment to the Cabinet has, in some instances, been used as a reward for electoral support, and women are still under-represented in the Cabinet or the government in general despite a court case saying neither gender must exceed two-thirds. Cabinet members must be approved by the National Assembly, but this is usually no hurdle given the almost-guaranteed presidential majority. The checks and balances in the system have not worked well.

 The Army and Police

From the colonial times onwards, the police and army oppressed the people, and so it has been since independence. The Constitution adopts a different approach: the tasks of the police are to prevent corruption and promote and practice transparency and accountability, comply with constitutional standards of human rights and fundamental freedoms; respect human rights, and foster and promote relationships with broader society. Uhuru had no patience with this approach. One of his first acts as President was to enact a law to increase the authority of the police.

Confidential expenditure

All government spending and taxation to raise revenue must be done by law, passed by Parliament and signed by the President. The principle of equality before the law means that the President should be subject to the same laws as any other state officer, including over finance. The Auditor-General has flagged some concerns over financial behaviour in the Office of the President. There is provision in the national budget for “confidential expenditure” by the President but controls over this are, not surprisingly, weak.

Inside Parliament

The president has the critical task of acceptance or rejection of law passed by Parliament, but Parliament always accepts the President’s views. This has given the President far more powers over law-making than, it is suggested, the Constitution intended. In recent months he has taken complete control of Parliament. It is a pity that both Parliament and the Executive do not look at Bills with more care and try to get them right first time.

The Presidency, Judiciary, and legal authority

The police are at the forefront of public security. Unfortunately, they have a record for brutality.  Good police laws passed soon after the Constitution have been amended in negative directions, including broadening police power to use firearms. 

The President has been given power to select the head of the police, with the approval of Parliament. The Inspector-General is likely to feel grateful to the President, and less likely to exercise independent judgment on his or her role.

The Director of Public Prosecutions (DPP) is appointed by the President with parliamentary approval, primarily to prosecute accused persons through the criminal courts. The DPP is hard to remove and must not be “under the direction or control of any person or authority”.

But a court had to point out that the President could not tell the EACC what to do, and the DPP that he must not accept the EACC’s passing on of the presidential directive. By appointing the DPP, with not long left of his term of office, as a CS, the President undermined the notion of an independent DPP.

The President is most interested in corruption, a kind of partnership between politicians and public servants with business people, as it has been for very long. He has tried to sharpen the machinery for identifying, and punishing, corrupt people, with what it seems good intention but without effectiveness.

The Judicial Service Commission (JSC) chooses judges. When Parliament tried to give the President power to choose the Chief Justice from a shortlist, a court had to say this was unconstitutional.

The President appoints two lay members of the JSC, but seems to choose those who can take orders from him, not represent the public. He has sometimes delayed for a long time making formal appointments of judges, and has also, crudely, criticised judges in office.

The Economy

Under the State Corporations Act the President may create a state corporation, appoint chairs of corporation boards, give directions to boards, remove board members if he thinks it is in the public interest, and appoint new ones, or even a whole board.  The President’s main engagement with parastatals is not to make appointments of senior staff to reward, often, politicians instead of people “on the basis of personal integrity, competence and suitability”.

The Constitution requires Executive authority to be exercised in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit.

Uhuru Kenyatta is not known for his commercial skills, but he is not without interest in commerce. Apart from his Big Four Agenda, one of his greatest ventures has been the standard gauge railway.

While the economic benefits of the line will accrue over time, there has been corruption in purchase of land for the line and stations; little control over the construction; and very little attention to the position of Mombasa as a county and the major harbour in negotiating with China.  And the extent of national debt, including to the Chinese, has become very worrying.

Political appointment

For a very long time posts that should be given to people “on the basis of personal integrity, competence and suitability” have been given to people because of their support for politicians. By making appointments on ethno-political bases, the President breaks another obligation of his office: promotion of respect for the diversity of the people and communities of Kenya.

Overall

Perhaps most importantly, the President is a symbol of national unity who must uphold and safeguard the sovereignty and unity of Kenya, promote respect for the diversity of the people and communities, and ensure the protection of human rights and fundamental freedoms; and the rule of law. 

His authority comes from the people but there are few mechanisms for accountability to them — basically the possibility of (once only) not re-electing the President.

The fundamental basis of his responsibilities is the Bill of Rights but attitudes to police brutality, ethnicity, as well as complicity in the whole state capture enterprise indicate a focus that requires urgent redirection.