BY DR WILLY MUTUNGA
Devolution has been built into our Constitution as a necessary mitigation against 50 years of centralised government which yielded poverty, inequality, division and underdevelopment. Devolution is extremely important to the survival of Kenya as a nation-state, and the Judiciary is duty-bound to support it in fulfilment of the express commands of Article 10 of the Constitution.
Devolution will not work if we create institutional apartheid between the national government and county governments. Although the Constitution allocates functions to the national and county governments in the Fourth Schedule, the self-same supreme law provides for collaboration. Indeed Article 6 (3) provides that national State Organs shall ensure reasonable access to its services in all parts of the Republic so far as is appropriate to do so, having regard to the nature of the services. Justice is such a universal service that national institutions have no choice but to provide it everywhere. Otherwise the rule of law, our democracy, and our Constitution will surely collapse.
The Constitution has devolved the Executive and Legislative functions, but kept courts, police services and correctional services within the ambit of the national government. Still, the same Constitution allocates the control of air pollution, animal control and welfare, elements of public health, planning and development, control of drugs and pornography and many other activities that may attract criminal sanctions.
Article 187 (1) provides for a function or power of government at one level to be transferred to a government at the other level by agreement between the governments if its performance would be more effective that way. There are only two conditions: first, arrangements must be put in place to ensure that the transfer of a function is accompanied by the requisite resources, and secondly, the constitutional responsibility for the function remains where the Fourth Schedule places it.
Let me speak briefly to an issue that looks so simple yet quite poignant – dialogue. The dearth of dialogue in this country evidences the death of common sense. Each time our country has been perched on the horns of a dilemma – such as how to decisively deal with terrorism and other security threats while upholding the rights guaranteed in the Constitution – dialogue has enabled us to strike the right balance. We have educated each other, appreciated each other’s perspectives, confluenced on public interest as the overriding concern as guided by the Constitution we all swore to protect. Our deliberations are characterised by candour but always tempered with civility.
Our purpose is to lay aside our personal persuasions and engage with the crises that confront the citizenry with a view to delivering irreversible relief for the hurdles they encounter in their daily lives. We are fast approaching the deadline for the national government to restructure the provincial administration to accord with and respect the system of devolved government. This transition shall, no doubt, place more responsibilities on county governments in addition to those already outlined in the Fourth Schedule of the Constitution.
As leaders of devolved governments, governors bear a bigger responsibility in inoculating these nascent governments from the ailments of bad governance that have traditionally assailed the national government since independence. Corruption, ethnicity, clannism, personal rule, poor planning, patriarchy must not be allowed to take root in these new governments.
Let us be clear. When courts pronounce themselves on the meaning of the Constitution and interpret the law, the Judiciary is not taking sides; it is merely laying down the law. When the Judiciary hosts dialogue meetings with Senate, Council of Governors, National Assembly, or National Security Agencies, it is not taking instructions; it is leading in constructive engagement.
This is the spirit of dialogue and consultation in national and public interest that I would like all of us to embrace. In the adversarial nature of Kenya’s legal system, decisions will not always go our way but that is no excuse to act and respond in a parochial manner, especially when those decisions are very well argued and reasoned in law. One only needs to examine the number of times the courts have decided against the Judicial Service Commission for proof of our claim to impartiality. The JSC, in spite of being responsible for judges’ discipline, has not reacted with mindless rage and anger. Instead, it has appealed those decisions when it disagrees and accepted them where it agrees. We all have a duty to obey court orders.
Our politics, though characterised by numerous healthy competitions, also has a penchant for degenerating into unnecessary confrontations characterised by threats and ego trips that have nothing to do with the issues in contention. It is thoroughly entertaining in a tragic-comic sense, but it also saps national energy and squanders the goodwill for developing institutions.
There are still unsettled questions on the parameters of partnership between the national justice sector institutions and the County Governments and I believe that this forum will deal with them conclusively. The Judiciary is of the view that the Constitution and other statutes do not permit the creation of “County Courts” in the model of the defunct “City/Municipal Courts”.
These questions are important, and they are urgent. We cannot find answers to them by talking at each but by reasoning together.Devolution is no doubt working. Everywhere you look, the face of Kenya is changing because of the Constitution giving people more say in the management of their affairs. The assembly line of justice must also provide support for devolution.