By Marilyn Kamuru “Leadership is a potent combination of strategy and character. But if you must be without one, be without the strategy” – Norman Schwarzkopf In the recent Cabinet nomination and appointments, Kenyans witnessed an unprecedented failure in leadership by President Uhuru Kenyatta. Despite express constitutional provisions that define the size of Cabinet – Article 152 and Article 27(8) provide a clear maximum limit on the members of either gender – the President wilfully violated the provisions of Article 27(8). The President broke the law, and not just any law: the Constitution. One would expect some outcry from national leaders but the protests were isolated and far apart, and the nation has largely moved on. Why isn’t this big deal? I suspect because we are taking about women’s representation, so many people think it is a minor thing; trivial and unimportant. This is a mistake. The violation of Constitutional provisions on gender in the appointment of Cabinet is a constitutional issue and a national issue of paramount importance to all Kenyans. There is no reason or mitigation that is permissible when it comes to the Constitution. Either the President obeyed Article 27(8) or he did not. Article 152 defines Cabinet as “the President, Deputy President, Attorney-General and not less than fourteen and not more than twenty two Cabinet Secretaries”. President Kenyatta created 20 ministries, and as such his Cabinet is composed of 23 people. Article 27(8) states not more than ⅔rds of the members of an appointive or elective body shall be of the same gender. Two Thirds (67 per cent) of 23 is 15 and as such not more than 15 people in Cabinet can legally be of the same gender. Currently Cabinet has 18 men and 5 women. The percentage of men in Cabinet is 78pc far in excess of the maximum permissible 67pc. The law is clear. The math is elementary. It is evident that the violation of the Constitution is deliberate; as deliberate and unlawful as an attempt to establish 10 or 23 ministries. What we are witnessing with the President’s wilful violation of the Constitution is the refusal to be subject to the Constitution of Kenya. Indeed, by this action, the President is attempting to set himself and his office above the supreme law of the Republic, which in itself is unlawful and unpatriotic. Hoodwinked Perhaps people are unable to see the issue clearly because of the political context. Let’s use the example of a company with a Board of Directors and explore the same decision making process within a business context. A board of directors serves the company and even if some directors have constituencies, their decisions are supposed to be made for the overall benefit of the company, its shareholders and stakeholders. It would be improper for a director to make a decision to the detriment of the company or for their own personal benefit. The requirements for directors are contained in the law as well as the articles of incorporation, which provide for the number of directors as well as the minimum qualifications of said directors. In addition, the articles limit the powers of the individual directors as well as the Board. If, however, the chairman of the board proceeds to act in violation of the law and the articles, and appoints directors who do not meet the minimum criteria as defined in the articles, the same articles by which s/he exercises her power to appoint them, she acts ultra vires, outside her legal authority. There would be no argument that this action of the chair is as a result unethical and illegal. Further, the ultra vires act means that the resultant board is improperly constituted. It therefore follows that any decisions made by the improperly constituted board would not be binding. Eroding our foundations This is the same standard, if not a higher one, we should place on the President. The seemingly minor issue of an illegal board appointment can cause significant damage to the ability of the Board and the company to operate legally. The failure to abide by Article 27(8) in appointing Cabinet is not a women’s issue. It has significant national and international ramifications. Actions that are contrary to the Constitution have already been defined as invalid by the Constitution Article 2(4). President Kenyatta is therefore jeopardising the development agenda of the entire nation when he violates the Constitution and presides over an unlawful Cabinet. Kenyans need to be alarmed because when we are silent in the face of constitutional violations, we are eroding the foundations for our social and economic development. There will be no sustainable development without adherence to the rule of law. If observance of the law is based on political or socio-economic status, then we will be ruled by whims and the vast majority of us will be disadvantaged by this new constitutional order. As citizens we must challenge unconstitutional actions on both legal and moral grounds. The legal argument is clear, the Constitution is non-negotiable. Of course, we can amend the Constitution to remove the requirements for gender equality but as long as they exist, then any legitimate leader must abide by them. As citizens, our challenge to illegality should be driven by two things: Patriotism, which I define as belief and adherence to the seminal document of Kenya the Constitution 2010, and self-interest. When we protect the Constitution, as is our responsibility under Article 3, we are safeguarding our own interests as well as those of others. Resist illegitimate leadership I find the President’s actions particularly objectionable since they implicitly assert that women are not as able leaders and as a class of citizens whose primary role is to follow. But underlying the exclusion of women in Cabinet, the bigger issue with the President’s appointments is that he is unwilling to see himself as also a citizen. By acting outside the Constitution and refusing to exercise authority within its limits, he is asserting himself above the people of Kenya, to whom all sovereign power belongs, creating a new class of citizen. More than a failure of leadership, the President’s actions define him as an illegitimate leader. As citizens we have a moral obligation to resist illegitimate leadership. What are the implications if we do not? There are at least three that should be of significant concern. First, we establish precedent for the violation of the Constitution by those in power/authority. This in turn creates an incentive to acquire authority by any means necessary since it gives you unlimited power. As we approach elections, we are already starting to see signs of this win at all costs positioning from both Jubilee and Cord. When we allow the Constitution to be violated and selectively applied, we open a Pandora’s Box. We allow all citizens to choose what laws to follow and which ones to ignore. I don’t believe this was the President’s intention; he doesn’t think regular Kenyan citizens should have a choice about which laws to follow or not, he thinks that that prerogative is his and his alone. That is a deficiency of character that should concern us in a President. It is both legally and morally unsound. Broken his promises Second, we define ourselves as outside the Commonwealth of Nations. The President spent much of 2015 boasting about the Kenya Constitution’s protections of women and promising to safeguard them from his speech at the Women in Parliament Conference in March 2015 to the Global leaders Meeting on Gender in September 2015. However, when he had an opportunity to demonstrate his commitment he acted contrary to the Constitution, his campaign promises as captured in the Jubilee Manifesto and his pronouncements on the global stage. To put this issue into broader perspective, Kenya is last in the EAC in terms of women’s political representation. Our neighbour Rwanda leads the world. Women’s equality and leadership is no longer a foreign western idea, it is an African reality. When we chose to disregard laws on gender equality and deny women leadership, we are choosing to look back to the 19th Century and beyond and denying the realities of the 21st Century. This is the century we need realise Africa’s latent potential and possibilities, but Kenya will be left behind if our leadership continues to define itself outside of the Constitution and out of step with the global realities. Finally, and most dangerous, we reverse the gains from the post 2007-8 period where we chose as a nation to seek to create limitations of power on authority for our collective good and confirmed our commitment through enactment and promulgation of the Constitution of Kenya 2010. In a nutshell, none of the consequences of President Kenyatta’s violation of the Constitution are good for the citizens or for the nation. Kenyans must refuse to unravel the intricate tapestry that binds us as a nation: the Constitution of Kenya 2010. We must guard firmly against any and all violations of the Constitution, including and especially when these violations are perpetrated by the Presidency. When the President took his oath of office, he accepted to be bound by the Constitution; beyond the law, he has a moral and ethical duty to keep his word. At last year’s Mashujaa Day Speech, the President spoke about patriotism and I agree that this is something we must work harder to nurture and promote, but the President must be reminded he does not define patriotism. The highest demonstration of patriotism is respect for the Constitution, including our national values and principles which are provided in Article 10. Kenyatta should heed his own advice. We are waiting to see him demonstrate the patriotic, character driven leadership that Kenya deserves and it starts with strict adherence to the Constitution.
Writer is a lawyer and entrepreneur