By Edward Odhiambo Okello
One of the fundamental developments in the history of post-independence Kenya was the adoption of the Constitution in August 2010. The Constitution, which was a product of a protracted and negotiated process, created the Second Republic thus leaving an indelible mark in the country’s history. It has not only radically transformed the governance structure and relations, but also provided impetus for crystallisation of good governance in the country. The unanimity among the governance practitioners and scholars on the value of the supreme law was that it restored a sense of pride and social re-engineering in accordance with the principle of self-determination.
It is not in doubt that lack of respect for the rule of law, commonly referred to as impunity, was one of the reasons for the review of the Constitution. It is worth noting that the concept of the rule of law is one of the primary principles that underpin good governance. In its simplest form as espoused by Dicey, 19th Century British jurist and constitutional scholar, the rule of law posits that matters of governance have to be based on established laws and principles rather than the personal whims of rulers. Put differently, the rule of law entails supremacy of the law and equality of all before the law.
Assessing progress by oversight institutions
Impunity in Kenya was mainly manifested though flagrant breaches of the law and failure to bring the perpetrators to account for their actions. This was occasioned by, inter alia, concentration of state power in the core Executive and weak accountability mechanisms, which ultimately created a “criminal state”. Notably, state oversight institutions such as Parliament, the Judiciary and the Police were fundamentally weakened and “captured” by the elites. This is the mischief that the new Constitution sought to remedy.
Notably, the Constitution created new oversight institutions and strengthened existing ones to entrench constitutionalism in the country. The main institutions in this regard are Parliament, the Judiciary, National Police Service and Independent Commissions and Offices. Owing to their place in constitutional democracy, these institutions have been endowed the much needed independence to effectively discharge their functions.
While appreciating the progress so far, it is fair to state that the performance by these institutions has been below par. Indeed, one can rightly say that it has been disappointing.
It is not that the expectations of Kenyans were high; these institutions have simply failed save for a few, such as the Independent Policing Oversight Authority, that have remained faithful to their mandates! Other than the employment opportunities created by these oversight institutions, impunity has continued to reign supreme. Indeed, it may have increased in leaps and bounds under their watch! The sense of disillusionment among Kenyans is well captured by the ever increasing calls for restructuring, downsizing and disbandment. In extreme cases, calls have been made for lifestyle audits and resignation of the leadership in some of these institutions. These calls have not been without any merit. A simple examination of the performance of some of these institutions would clearly show the level of failure.
Take the example of Parliament. As traditionally designed, Parliament represents one of the supreme organs of the state that promotes the rule of law. Indeed, in the Westminster model of governance, Parliament was deemed to be supreme, what is commonly referred to as parliamentary supremacy. Leading philosophers such as Montesquieu, Locke,
Rousseau, Kant and Dicey acknowledged this fact in the separation of powers and the rule of law discourse. The role of Parliament in the rule of law is mainly reflected in its primary functions: law making, representation and oversight. In our case, the present Parliament (National Assembly and Senate) has delivered below par in the three aforementioned areas despite the constitutional design and protection.
We have a Parliament that is indistinguishable from the core Executive, and in some extreme cases, the ruling party! How can Parliament be an effective overseer when objectivity in the pursuit of common good is lost? We seem to be obsessed with the supremacy of numbers, commonly referred to as “tyranny of numbers”. Simply put, our formation of Parliament, coupled with the tribe-based politics and state capture, has stifled the effectiveness of Parliament.
Granted, Members of Parliament from the ruling party should support the agenda of the party, but that should be on the basis of common good as opposed to individual, narrow or parochial interests. It is worthwhile to note that the position of a Member of Parliament is an exalted position in society, hence the title “Honourable”. Once elected to the position, the individual is expected to not only represent his constituents or the sponsoring political party, but also espouse the interests of the nation.
We have had cases of laws passed by Parliament that undermine the rule of law. A number of these are usually contained in the Statute Miscellaneous Amendment Acts. In some cases, such as the Parliamentary Powers and Privileges Bill, Parliamentarians have sought to shield themselves from public scrutiny and accountability. Worse still, the undermining of the rule of law has not ended there; laws that ought to operationalise various parts of the Constitution, such as leadership and integrity, as well as recall of elected leaders, were deliberately enacted to be ineffective. The same fate has befallen the oversight role of Parliament.
Interestingly, even the representation role of Parliament has not been spared; there have been reports of some Members of Parliament who have never made their maiden speeches since election in March 2013 – over three years after election! Perhaps this would explain the below par performance since it is not conceivable that Parliament can be effective in discharging its three main responsibilities without debating.
In relation to the Judiciary, it is trite knowledge worldwide that the courts are the bastions of constitutionalism. There is no country that has attained constitutionalism or good governance in the absence of a strong and independent Judiciary. Globally, the Executive is known for its penchant for breaches of the law, albeit with varying degrees from one country to another. While Parliament plays an important role in promoting constitutionalism, history has shown that its effectiveness is determined by cultural, political, social and economic factors.
As aforestated, Parliaments that are beholden to the Executive cannot be effective. In such cases, it is the Judiciary that comes to the people’s aid, hence the phrase “bastion or citadel of constitutionalism”. This role is expressly stated in a number of provisions of the Constitution, in particular Chapter 10, which provide for the functions and powers of the Judiciary. While it is important to appreciate the progress by the Judiciary in promoting constitutionalism, its performance has been below par, not meeting the expectations of Kenyans. It has been unable to effectively and expeditiously deal with cases brought before it. Granted, the present leadership of the Judiciary inherited myriad challenges, but has nonetheless failed to rise to the occasion.
This is especially so in matters brought before the court that are of utmost national interest. It is difficult to understand, indeed indefensible, why matters of national importance have always taken long to be determined by the courts. In a working democracy, the Judiciary expeditiously, boldly and decisively determines such matters.
As an illustration, the Constitutional Court of South Africa recently determined a case brought against President Zuma, “Economic Freedom Fighters v Speaker of the National Assembly and Others”; “Democratic Alliance v Speaker of the National Assembly and Others”, within six months. The case had been filed in September 2015 and the Court delivered its decision in March 2016. Similarly, the Supreme Court of South Africa delivered a landmark decision on October 8, 2015 pitting the South African Broadcasting Corporation versus the Democratic Alliance, within six months. In both cases, the decisions have been hailed globally as landmark decisions that created new jurisprudence in the promotion of constitutionalism, and the rule of law in particular.
In our case, the courts have not only been slow in determining matters brought before them, but also shied away in making bold, decisive and clear decisions. Three examples will suffice in this regard. The first case relates to an Advisory Opinion sought by the National Land Commission at the Supreme Court under Reference No. 2 of 2014. The matter not only took long (over one year) to be determined by the Supreme Court, but when the Advisory Opinion was rendered on December 2, 2015, it lacked clarity and succinctness.
Surprisingly, the Supreme Court skirted around the issues as framed by the National Land Commission for which the Advisory Opinion had been sought in the first place! The main parties in the matter, the National Land Commission and the Ministry of Land, Housing and Urban Development, were unable to clearly understand the Advisory Opinion. The Supreme Court had not unlocked the issues in contention between them. As a result, the parties had to constitute a special team comprising external stakeholders to interpret the Advisory Opinion!
The second case was that which related to the digital migration, which was an appeal to the Supreme Court from the Court of Appeal. While the matter was finally decided by the Supreme Court, it was interesting to note that the Court could not determine the matter expeditiously, opting to take it back to the parties for their resolution through mediation even though it was clear that the parties could not agree on their own – explaining the reason why the matter had been in court from the High Court to the Supreme Court. This prolonged the conclusion of the matter. Worse still, but in line with its practice, the final decision lacked clarity!
In another recent case against a sitting Member of Parliament and the Independent Electoral and Boundaries Commission, the High Court sitting in Nairobi rightly found that the Independent Electoral and Boundaries Commission has acted in dereliction of its constitutional duty in clearing the Member of Parliament, Hon. John Kariuki Ndirangu, to stand for election in contravention of Article 99(2) (h) of the Constitution and Section 24(2) (h) of the Elections Act, 2011. Interestingly, the Court failed to declare election of Hon.
Ndirangu as a nullity on account of its prior finding. Moreover, the decision was made three years after elections when Hon. Ndirangu had served almost the entire parliamentary term. This state of affairs is not borne out of isolated incidents; it seems to be the sine qua non in matters taken to the Judiciary.
The unexplainable and unjustified delay in determining matters has fundamentally undermined the rule of law, thereby entrenching impunity. The protracted criminal matters, particularly cases of corruption – some of which have been in court for over five years – further illustrate this. In contradistinction, the aforestated decisions of the South African courts were decided within months.
Outside South Africa, we can still vividly remember the trial of Madoff in the United States in 2009 within six months for running the biggest fraudulent scheme in the United States. Madoff, who was 75 years old at the time of his conviction, was sentenced to jail for 150 years! In comparison, we are still grappling with cases relating to the Goldenberg and Anglo-Leasing scandals that occurred in the early 1990s and 2000s respectively. The same fate has befallen many other cases involving prominent personalities. Their conclusion is not in sight. Our predicament has created the perception that one can get away with impunity for as long as such matters are made to perpetually stay in court. As long as the Judiciary cannot determine cases brought before it expeditiously and boldly, we are headed in the wrong direction, and impunity is likely to get worse than it is now.
The same scenario is replicated in the case of other oversight institutions such as constitutional commissions and independent offices. We have become accustomed to eternal investigations of corruption and economic crimes. Anglo Leasing scandal is still under active investigation, over 10 years since it came to public limelight. We are still investigating the so-called Chickengate Scandal yet the other suspects in the United Kingdom have long been tried and convicted. One wonders whether such cases are likely to be concluded in this lifetime.
A number of the oversight bodies have deliberately failed to assert themselves in accordance with the Constitutional and statutory underpinnings. We have been routinely entertained with cases of land grabbing, procurement of items at inflated prices, conflict of interest and misallocation of resources among others. Entertained because we seem to rejoice and celebrate the lords of impunity. They are our heroes. We have continually sowed and nurtured failed leadership. We can still remember the cases of grabbing of land belonging to Lang’ata Road Primary School, the ‘stainless’ wheelbarrows of Bung’oma, the ‘golden’ gate of Nyamira, the National Youth Service saga and the incessant embezzlement of public resources at both levels of government.
Not long ago, we had cases of Cabinet Secretaries campaigning openly for certain candidates in flagrant violation of the Leadership and Integrity Act, 2012. How many of the suspects have been tried and convicted? None. The oversight bodies are yet to “see” these matters! Where they have been taken up, investigations have yet to be concluded in surprisingly straightforward cases. What can be expected in situations where relevant bodies go to sleep in enforcing the law? The response can only be impunity! Our record in these matters is unrivalled; even a country like Nigeria, which has had similar challenges would fare better when compared with Kenya.
It is also worth noting that six years since the adoption of the Constitution, we are yet to harmonise the salaries and allowances in the public service. The disparities are still prevalent, if not amplified during the said period even within the same sectors. We have also ended up making elective leaders to assume exalted positions, thanks to the prescribed salaries and allowances by the Salaries and Remuneration Commission. Worse still, there have been allegations of impunity and state capture within some of the oversight institutions. The ineffectiveness of these bodies has not only undermined the rule of law, but also entrenched impunity, which can be said to have become our trademark.
Revitalising the Quest for Rule of Law
Kenya has a fairly robust and sound legal system. We have continued to churn out laws regularly with the false belief that the laws would solely fix our challenges. While a sound legal framework is the foundation upon which the rule of law is premised, it is important to appreciate that the laws by themselves without the right leadership cannot guarantee the rule of law. Although the Constitution is a milestone in our history, it is just the starting point in the rule of law spectrum.
In our case, it is common knowledge that one of the main challenges facing the oversight institutions in Kenya today is deficiency in leadership. This manifests itself in different ways. Notably, it leads to dereliction of duty that ultimately erodes the rule of law. The truism by John Maxwell, “everything rises and falls on leadership” aptly describes our situation. It is doubtable whether some of these leaders were tested and found capable of discharging the enormous responsibilities of their offices. This is what would be called the “leadership tragedy”, which has been the bane of our country.
The starting point in remedying the leadership tragedy in oversight institutions is for Kenyans to be angry. Not angry because the institutions have failed us, but because we have failed to be angry with failed leadership. Simply put, we must fix our leadership. This should entail legal and institutional reforms, including review of the appointment processes to these offices – qualifications and competencies are vital in this regard. We may even be compelled to introduce a “passionometre” to determine the suitability of the candidates to these offices. As Migai Akech has reminded us, “if the right people are not appointed to the offices created by the new Constitution, no meaningful change can take place”.
Accordingly, joy riders and political gatekeepers must be kept out of these oversight institutions if we are to reclaim our country and entrench the rule of law.
Second, we should develop more effective accountability mechanisms to ensure that oversight institutions effectively discharge their responsibilities. The need for this new form of accountability arises from the disappointing accountability through Parliament. In particular, there should be more meaningful public participation in the accountability of these institutions. This is likely to enhance the performance of oversight bodies.
Third, the Judiciary should develop innovative and better ways of expeditiously and firmly determining matters brought before it. If possible, timelines should be developed albeit with reasonable flexibility. There is simply no justification why cases of corruption or abrogation of the rule of law should take years to be determined by the court.
Ours is a promising young democracy for which independent oversight institutions play an important role. While there has been progress in terms of the legal framework, the effectiveness of the oversight institutions in entrenching the rule of law remains a mirage.
Write is an advocate of the High Court of Kenya