Remember Dr Nancy Baraza, Kenya’s first Deputy Chief Justice who was forced to resign in 2012 after pinching the nose of a security guard?
Well, today, compliance with the provisions of Chapter Six of the Constitution on the integrity of State officers seems to have been relaxed. In fact, contravention has become the norm.
Today, senior government officials appear to have no qualms about public behaviour or utterances that bring their high offices into disrepute. Trade Cabinet Secretary Moses Kuria, who is currently in the eye of a storm caused by his brazen attack on the media, is the latest senior officer in President William Ruto’s administration whose words and actions have attracted public ire.
Constitutional lawyer-turned-politician Dr Ekuro Aukot observes that the manner in which Kenya has journeyed from one end of an accountable and law-abiding society to the other of sheer impunity and disregard for law and order within a span of just 11 years — as portrayed by the instances of Baraza and Kuria — is difficult to fathom.
The first high-profile victim — and probably the only one so far — to bow to public pressure for contravening provisions of Chapter Six of the Constitution, promulgated only two years earlier, Baraza resigned following the incident at the Village Market Shopping Mall in Nairobi’s Gigiri area on December 31, 2011, when she attacked Rebecca Kerubo and pointed a gun at her.
Kerubo had sought to frisk the DCJ at the entrance of the mall but Baraza refused to comply. Kerubo stood her ground and in a fit of rage, Baraza struck out at the guard, pinching her nose and warning her: “You need to know people.” The DCJ was later taken to court for exhibiting “utter disrespect” and “bringing her office to disrepute” among other charges.
The most humbling gesture, though, was her decision to resign and offer an apology to the security guard and Kenyans. This contrasts sharply with the current instance of the Trade CS, who has not only declined to succumb to calls for his resignation but continues to fight off his accusers with offensive and vulgar language.
Baraza’s boss then, Chief Justice Dr Willy Mutunga, kept out of the fray as his deputy was roasted in the court of public opinion.
In Kuria’s case, Deputy President Rigathi Gachagua brushed off the CS’s threat to ban government advertising in Nation Media Group products but agreed with him regarding the media’s alleged rogue behaviour. Kuria had expressed disappointment in what he perceived as the NMG’s “skewed reportage” of the Ruto administration.
Stressing the significance of integrity and good leadership, Aukot, who served as Director of the Committee of Experts (CoE) that birthed the 2010 Constitution, says Chapter Six was deliberately designed to address such scenarios following many decades of betrayal of the Kenyan people by their leaders.
“The reason why Kenya has — since Independence in 1963 —remained in a deplorable state with regards to governance is because we have experienced political leadership at all levels that do not care about the people, and for which servant leadership is an elusive factor,” argues Dr Aukot.
Article 73 of the Constitution on responsibilities of leadership demands that State officers demonstrate respect for the people, bring honour to the nation and dignity to the office and promote public confidence in the integrity of the office.
Sub-section (ii)b of the said article further “vests in the State officer the responsibility to serve the people, rather than the power to rule them”. On the subject of ‘Conduct of State officers’, Article 75 of the Constitution stipulates thus: “A State officer shall behave, whether in public and official life, in private life, or in association with other persons, in a manner that avoids: (a) any conflict between personal interests and public or official duties; (b) compromising any public or official interest in favour of a personal interest; or (c) demeaning the office the officer holds”.
Dr Aukot explains that the clauses on integrity were deliberately introduced in response to Kenyans’ quest for true leadership transformation. Read alongside Chapter One, which partly states that “all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution”, the former CoE boss points out that the people are technically the employers of political leaders, which is why leaders must be called out for their arrogance and demeaning behaviour towards their employer — the people.
Read also: Kuria assault bares regime’s fear of media
Human rights lawyer Harun Ndubi regards as arrogance and impunity the fact that senior government officers do not exit office upon demand by the people for contravention of Chapter Six.
Noting that William Ruto unsuccessfully campaigned against the current Constitution in 2010, Ndubi opines that the President “has no respect for the Constitution, and in particular provisions on the integrity of the State officers”, and so Ruto is unlikely to prioritise the reprimand of errant officers.
President Ruto has weighed in on the current issue involving his Trade CS by asking the media to respect Kuria’s right to speak his mind freely in the same way he says his government will accord the media the freedom to exercise their trade. Gachagua has thrown his weight behind Kuria, stating that the two of them share a common enemy — the media.
The Kenya Kwanza administration’s protection of Kuria will not be the first case of its kind. Right from Independence, sitting presidents have tended to protect their blue-eyed boys from the ire of the masses.
Former influential Cabinet minister and Kiambaa MP Mbiyu Koinange, for instance, liberally unleashed verbal attacks on his constituents and when the enraged electorate threatened to vote him out in 1974, he arrogantly fired back that President Jomo Kenyatta’s and First Lady Mama Ngina ’s votes were all he needed to retain his seat.
A political confidante and brother of the President’s third wife, Grace Wanjiku, Koinange reportedly enjoyed protection from the first family, his excesses and shortcomings — real and perceived — notwithstanding.
Kenyatta’s successor, Daniel arap Moi, was much stricter and there was a sizeable number of ministers who got fired — unceremoniously and by roadside pronouncements — for falling short of expectations in service delivery but mostly for not conforming to his political script and wavering in allegiance.
Even then, the former school teacher, known for his disciplinary traits, had a soft spot for a few members of his Cabinet, including Nicholas Kipyator Biwott who was at the centre of power during Moi’s 24-year rule.
Also read: Why are officials in fear of media?
When the then Trade minister was caught up in an embarrassing incident in 1995 with a chambermaid in an Auckland hotel, for instance, the government moved in to cover up the ugly drama that nearly led to a diplomatic spat with New Zealand authorities. Despite Ugenya MP James Orengo’s demands for action against the minister, whom he cheekily referred to as “the bull of Auckland”, Moi snubbed Parliament’s concerns and retained Biwott in his Cabinet. He caved in to pressure, however, and relieved the former MP for Keiyo South of his Cabinet post when his name featured prominently in the inquiry of the 1990 assassination of his Foreign Affairs colleague, Dr Robert Ouko.
The third President, Mwai Kibaki, on the other hand, appeared to have no sacred cows. In fact, one of his closest friends and allies, David Mwiraria, resigned as Finance minister in a most exemplary gesture in 2006 after being named in the Anglo Leasing scandal involving Sh600 million worth of contracts for a secure passport computer system and a forensic laboratory.
During his 10 years in office, Uhuru Kenyatta sent packing a set of Cabinet ministers reportedly involved in corrupt deals. Three of them, Davis Chirchir, Felix Kiptarus Kosgey and Michael Kamau, have since returned to the fold as Energy CS, Head of Public Service and Chairman of the National Housing Insurance Fund Board respectively after Ruto took over the reins of power last year. The President’s lieutenants claim the three, and many others were hounded out of office for political reasons.
Ndubi attributes the rise of impunity in government to the President, “who has elected to shield his appointees from public scrutiny”. The one-time Executive Director of Kituo Cha Sheria, a legal advice centre established in 1973 to empower the poor and marginalised to access justice, accuses the President of appointing into government individuals who lack integrity, some with criminal cases “who benefitted from a choreographed clean-up by the office of DPP (Director of Public Prosecution) before appointment”.
Ndubi calls upon Kenyans to wake up and defend their space since “the Constitution is like an animal in the wild and we need to take care of it and ourselves”. And Dr Aukot lays the blame squarely on the people for the calibre of leaders they keep electing into office.