Two sets of institutions will define the legacy the new administration will cultivate in entrenching constitutionality.
By Gilbert Muyumbu
There are at least two sets of institutions whose relationship with the new William Ruto administration will define the legacy that the administration will cultivate in as far as the rule of law is concerned. The two sets of institutions consist first of the horizontal accountability (popularly referred to as checks and balances) institutions and vertical accountability institutions. In the first set are institutions like the 2010 constitution, sections of security organs dealing with civilian peace, the judiciary, parliament, the political opposition, constitutional commissions, and independent offices, as well as the electoral management body. These institutions constitute the formal check on the executive and are expected to retain a horizontal, equal relationship with the executive. County governments can be included in this set, given they are a split from the national executive and, in a way, a rival of that executive.
On the other hand, the set of vertical accountability institutions consists of organised societal groupings which use their social position and numbers to assert their influence on government. These include faith-based institutions, the labour movement, the media, and Civil Society Organisations (CSOs). This article considers the state of horizontal and vertical accountability institutions at the end of the Uhuru Kenyatta administration. From this, we build a scenario of how the new William Ruto administration is likely to relate with these institutions, establishing the likely continuities and discontinuities with the preceding administration.
Ruto and the Constitution
Two main stances characterised the preceding Uhuru Kenyatta administration’s attitude towards the Constitution. On the one hand, it implemented a few of the constitutional provisions it was comfortable with. On the other hand, it ignored and reverted to amending the provisions it was uncomfortable with. The highlight of this latter approach was an attempt in the administration’s second term, aided by the political opposition, to make significant amendments to the Constitution itself. This was through the Building Bridges Initiative (BBI), which President Uhuru Kenyatta had initiated in partnership with Raila Odinga. Besides attempting to amend the Constitution, the administration also tried to introduce amendments to laws that touched on its relationship with other institutions. This was the case with security agencies, the judiciary, county governments, new constitutional commissions, and independent bodies.
Under the Ruto administration, the dual habit of cherry-picking favourable clauses and ignoring or attempting to amend unfavourable ones is likely to continue. However, given the fate of BBI under the Uhuru administration, the Ruto administration may be cautious against attempting any outright amendments to the Constitution, primarily due to the precedence set out by the judiciary concerning BBI. Nonetheless, it may gather enough courage to sneak in cheeky amendments, especially those about security agencies, where it may remove any vestiges of independence that the Uhuru administration did not entirely destroy.
Ruto and security agencies
Perhaps no other institutions received as much attention from the Uhuru administration as those within the security sector. The administration deployed its parliamentary majority to recalibrate these institutions away from the 2010 constitutional provisions early on in its tenure. Two institutions that suffered this onslaught were the National Police Service Commission (NPSC) and the National Intelligence Service (NIS). Whereas the NPSC lost its power to hire the IGP and their two deputies to the President through the National Police Service Act of 2014, the NIS, on the other hand, witnessed the appointment of new senior personnel within the institution, installing personnel who did the President’s bidding, including undertaking controversial assignments. One such assignment was to vet judicial officials submitted to the President by the JSC for appointment. As a result of the onslaught, security institutions under the Uhuru administration did not undertake the comprehensive reform envisaged by the 2010 constitution. They remained under the direct command of the President.
The Ruto administration is not only likely to fully exercise the powers which the Uhuru administration enjoyed over the security sector institutions, but he is also likely to attempt to consolidate these powers further. The administration will likely appoint its favoured personnel within the institutions and deploy them to undertake controversial assignments, especially of a political nature, just as was the case with the Uhuru administration. Given the configuration of these institutions, they are likely to be a source of excesses under the Ruto administration, just as they have been under the Uhuru administration.
Ruto and the Judiciary
The judiciary was perhaps the institution that had the most open conflict with the Uhuru administration. At the commencement of the administration’s reign, the judiciary was transformed, ignited by the new Constitution, the appointment of Willy Mutunga as Chief Justice, and the replacement of Mutunga by David Maraga. Whereas the Constitution set in motion the transformation of the judiciary through setting up the JSC and demanding the vetting of judicial officials, Mutunga’s appointment as Chief Justice deepened the transformation through a strategy called The Judiciary Transformation Framework: 2012-2016, launched on 31 May 2012. The transformation was to continue under the short but drama-filled tenure of David Maraga, Mutunga’s successor as the second Chief Justice under the new Constitution.
Underpinning this transformation was an evolving relationship between the judiciary and the Uhuru administration. During Mutunga’s tenure, the judiciary largely avoided confrontation with the executive. Under Maraga, the relationship deteriorated and worsened following the nullification of the presidential election results from the August 2017 election. In the immediate aftermath of the nullification, the executive and parliament embarked on an outright onslaught of the judiciary, trying to push it into a subservient relationship with the two institutions. Later, the Uhuru administration initiated further hostile measures against the judiciary, including personal attacks and intimidation of members of the judiciary, stifling the judicial budget, downgrading the office of the Chief Justice in the pecking order of official government protocol, and blaming the judiciary for the administration’s failure to tackle corruption. More significantly, the administration refused to follow directives issued by the courts and instead set up its own rule that it would only follow court orders verified by its AG. Further, the administration attempted to infiltrate the JSC and influence the appointment and performance of judicial officials.
Much like the Uhuru administration, the Ruto administration may find the judiciary one of the most difficult institutions to control. Nevertheless, it will not give up on the attempt. Although the actualisation of the judiciary fund may deny the new administration the advantage that the Uhuru administration enjoyed of using the budget to control the judiciary, it may use other measures to chip away at judicial independence. One of these measures could be a direct onslaught on the JSC, infiltrating it with its people to get to the heart of judicial independence.
The Ruto administration may also exploit its administrative advantage over the judiciary, using services such as security and protocol in official functions to get at the judiciary. Like the Uhuru administration before it, the new administration may withdraw security services for certain judicial officials it would consider hostile to it. It may also engage in direct intimidation and deployment of a hostile AG and the so-called Hustler National Intelligence Bureau to direct personalised attacks against judges it may consider hostile. Most likely, the new administration will disobey court orders regularly, citing the same reasons as the Uhuru administration before it.
Ruto and Parliament
The Uhuru administration’s relationship with parliament was one of executive dominance. The 2010 constitution introduced at least three significant changes to bolster parliamentary independence. These were to set up a bicameral parliamentary arrangement consisting of a senate and national assembly, bolstering the separation of powers by eliminating direct executive participation in parliament, and encouraging the formation of parliamentary committees through which parliamentary business was conducted.
Despite these empowering changes, parliament’s ties to the executive made it act as an extension of the executive. Save for one rare occasion when the National Assembly refused to endorse an executive appointee, most of the decisions made by parliament were a reflection of the executive’s wishes. The executive dominated both houses through mobilising along political party lines and planting pliant speakers who would favour it. Using this influence, it then forced through parliament a number of controversial initiatives, among the most outstanding being the Statute Law (Miscellaneous Amendments) Bill, the Election (Amendment) Bill, and the Security Bill, 2013, all aimed at giving the executive greater and direct control over the affairs of the CSOs, the political opposition and the media, as well as attempted constitutional changes through the BBI.
The new Ruto administration will likely seek to dominate parliament just like the Uhuru administration before. It has already installed pliable speakers in both houses. It will co-opt members of the opposition through offers of public appointments and actual exchange of money to get its way. These speakers are the means through which the administration will control the two houses.
Besides speakers, the other means through which parliament may be subverted to the executive would be through special offers to sections of the opposition and independent candidates who will be pressured to join the government side, which is already happening. This will result in a slim majority for the new administration, and it will deploy this majority to pass most of its agenda.
However, relying on the slim majority, especially from independent candidates and sections of the opposition, the administration’s hold on parliament would be fragile, making it vulnerable. This vulnerability may either see it seek consensus or make it resort to outright manipulation of members of parliament through corrupt practices. Therefore, one expects a concerted and dedicated effort to placate MPs to side with the government from the Ruto administration. This can become a constant avenue of impunity, especially that related to corruption and misuse of public resources to buy political loyalty.
Ruto and the political opposition
Under the Uhuru administration, the relationship with the political opposition swung from open conflict in the first term to complete co-optation in the second term. The relationship started with a dispute over the 2013 elections, which was settled by the Supreme Court of the Republic of Kenya in favour of the administration.
Key highlights during the era of hostility included the fight over the administration’s attempts in 2013 to pass three controversial laws which sought to give the executive more control of the civic space, fights over the electoral management body, especially towards the 2017 election, and fights in the immediate aftermath of the election, when the opposition leader Raila Odinga took a mock oath as a ‘people’s president of Kenya’ on 30 January 2018. In the era of co-optation, key highlights included the ‘handshake’ between President Uhuru Kenyatta and Raila Odinga on 18 March 2018, joint campaigns for the BBI conducted by Uhuru Kenyatta and Raila Odinga and the merger of the ruling Jubilee party and the opposition ODM party into a joint presidential ticket under the Azimio coalition party in the run-up to the 2022 presidential election.
The Ruto administration will know that the political opposition comprises three camps. The first camp consists of the opposition, made up of people uncomfortable with being in the opposition. This camp found itself in the opposition mainly because it followed the incumbent in the last elections. With the unexpected defeat of the incumbent, it would now seek to switch its loyalty to the new incumbent. Alongside this faction within the opposition is a small grouping consisting of independent MPs who would be co-opted using state largesse, as well as a few other MPs who found themselves in the opposition but share the same ethnic affiliation with Ruto, and who would be told to ‘come back home’.
The second faction within the opposition ranks would consist of the hardcore loyalists of Ruto’s rival Raila Odinga. This opposition would be uncompromising in its stance against the Ruto administration. Unless Odinga enters into a truce with Ruto, it will be the main source of restraint on the Ruto administration. There is likely to be a third camp in the opposition, consisting of loyalists of Wiper Party leader Kalonzo Musyoka. This group may act per whatever advances Musyoka’s 2027 presidential interests. It will swing between co-optation and confrontation with the Ruto administration, depending on what it will perceive as Musyoka’s best interests.
The Ruto administration will have a set of measures for each of these three opposition camps. The first camp would be easily co-opted through offers of state largesse and the rhetoric of being in government to ‘bring development’. The second camp, consisting of Raila loyalists, would face the harshest measures from the administration. There would be acts of impunity against this group, with security organs deployed to harass, intimidate and even kill people in the camp. The third group, consisting of the Kalonzo loyalists, would be in a constant state of flux, moving between opposing the administration and supporting it, depending on how Ruto treats Kalonzo Musyoka. A key concern for the administration would be balancing demands from the many constituencies it will want on its side, more so the Mt. Kenya Kikuyu constituency, which made its ascent to power possible. Even as it co-opts other sections of the opposition, the Ruto administration will keep an eye on how to keep the Mt Kenya constituency happy.
Constitutional Commissions and Independent Offices
The Uhuru administration’s relationship with constitutional commissions and independent offices was outright domination. Whereas the relationship with the judiciary and parliament required careful navigation due to the visibility which the two institutions enjoyed, the relationship with institutions such as the Auditor-General, the Ethics and Anti-Corruption Commission (EACC), the Commission for Administrative Justice (CAJ), and the Directorate of Public Prosecution (DPP) among others required no such careful navigation. As such, the administration did not hesitate in subverting the institutions to its will.
Starting with the Auditor-General, this was perhaps the institution that the Uhuru administration forced on its knees in the full glare of the public. The height of tension between the administration and the institution was reached when President Kenyatta himself directed a personal attack against the Auditor-General over the latter’s audit of money the executive had borrowed through the Eurobond scheme. Besides the public attack, the Uhuru administration instituted other hostile measures against the Auditor-General. These included actual attempts to remove Edward Ouko, the first post-2010 auditor-general from office, ignoring the audit reports the office came up with, attempting to scuttle the Auditor-General’s powers through the Public Audit Bill 2014, and directly influencing Mr. Ouko’s replacement at the Auditor-General’s office when he retired in 2019.
For the EACC, its subservience to the Uhuru administration stemmed from the indirect actions of the administration. Having existed previously as the Kenya Anti-Corruption Commission (KACC), the institution had been rebranded by the 2010 Constitution as the Ethics and Anti-Corruption Commission (EACC) and entrenched as an independent commission with a broader mandate of enforcing the Constitution’s Chapter Six.
The Uhuru administration responded to the new EACC in two main ways. First, it set up two additional laws to help the institution fight corruption. These were the Leadership and Integrity Act of 2015 and the Bribery Act of 2016. Secondly, it created at least two additional agencies to improve coordination in the fight against the vice. These were the Multi-Agency Team (MAT) and the National Task Force on Anti-Money Laundering. The MAT’s mandate was to coordinate efforts against corruption. Its membership included the office of the Attorney-General, the DCI, the Assets Recovery Authority, the Kenya Revenue Authority, and the Financial Reporting Centre, besides the EACC.
Despite the empowering changes, the EACC remained hamstrung throughout much of the first term of the Uhuru presidency, with a quick succession of commissioners between 2010 and 2018. It only somewhat stabilized with the entry of Twalib Mbarak as the new CEO, taking over from acting CEO Halakhe Waqo in mid-2018. With Mbarak’s entry, the institution settled into the familiar routine of appearing to fight corruption.
The changes at the EACC coincided with changes in the other two related frontline anti-corruption organs, namely the DPP and the DCI. The Uhuru administration appointed George Kinoti as its new head of the DCI. Within the DPP, the 2010 constitutional recalibration had separated it from the Attorney General’s function. Whereas the AG was made legal advisor of the government, serving at the pleasure of the executive, the DPP was made an independent office with the security of tenure and an answerability towards parliament rather than the executive. Its core mandate consisted of directing the Inspector-General of Police to investigate unlawful conduct, instituting and/or presiding over criminal cases in the law courts, and terminating ongoing cases in line with laid down rules.
However, the appointment of the first DPP had been controversial, with the executive under the Kibaki administration seeking to retain control of the office when President Kibaki appointed Kioko Kilukumi as DPP. Nonetheless, the appointment was reversed, and a new process of appointment controlled by parliament was initiated. The parliamentary process was bogged down in controversy over the suitability of the eventual nominee Keriako Tobiko, with sections of the parliamentary vetting committee scrutinizing the nomination and questioning the nominee’s integrity. The appointment of the first DPP thus cast a shadow on the office even before it began its work under the new constitutional dispensation. It performed dismally, with corruption and economic crimes increasing exponentially under Tobiko’s watch. This continued until Tobiko was eased out of office before the expiry of his 8-year tenure in March 2018 under an arrangement with the Uhuru administration. He was replaced by Noordin Haji.
Collectively, the changes in the frontline anti-corruption institutions resulted in some moderate improvement in the performance of the institutions. Under Twalib for instance, the EACC reported arrests of senior government officials, recovery of grabbed public land, and asset recovery in cases involving government officials. Under Haji, the DPP set up a Prosecution Fund into which proceeds of corruption would be surrendered to the Kenyan public. However, the overall performance of the institutions remained dismal. The institutions remained hamstrung by internal weaknesses, limited capacity to fight crime, and badmouthing by sections of the political class, which neutralized the institutions’ work by claiming that they were partisan.
As a demonstration of the direct control that the executive under the Uhuru administration enjoyed over the institutions, the administration placed the institutions, along with others such as the NPSC, the PSC, the JSC, the IEBC, the office of the DPP, and the EACC under direct executive supervision by various ministries and state departments in a gazette notice in May 2020. Although High Court Judge James Makau later reversed this, it illustrated the direct influence that the executive enjoyed over the new institutions.
Perhaps the only constitutional Commission to indicate a capability of independence from the Uhuru administration was the Commission on Administrative Justice (CAJ). This mainly was under its first chairperson, former LSK council member Otiende Amollo. Under Amollo, the CAJ rejected the offer of sharing physical office space with the Deputy President’s office to maintain its accessibility to the general public. It also litigated against executive decisions, especially those which affected CSOs.
The Ruto administration will likely continue the same approach to independent offices and constitutional commissions. The administration is inheriting institutions that it had largely neutralized through bad-mouthing during campaigns in the August 2022 election. Its relationship with the heads of these institutions is hostile, and it is likely to instigate the premature end of their tenures. It is expected to justify these actions because the institutions had been politicized; thus, removing the inherited CEOs/heads would be one way of cleaning up the institutions.
There will likely be specific actions against specific institutions. The most apparent institution targeted for immediate change will be the DCI under the justification, valid to some extent, that the institution had been partisan under the Uhuru administration. At the end of the Uhuru’s tenure, the head of the institution will most likely be among the first officials to be kicked out of office.
Changes in the other institutions may not be straightforward, given the security of tenure that the heads of these institutions enjoy. The Ruto administration must live with how the Auditor-General, the EACC, and the DPP are constituted at its ascension into power. Nevertheless, it may use other means of controlling the institutions. Like the Uhuru administration before it, the Ruto administration is likely to ignore annual audit reports from the Auditor-General. For the EACC and DDP, the heads of these institutions may, out of caution, decide to slow down on the anti-graft rhetoric. The administration may put targeted pressure on these institutions’ heads, forcing them out of office. It may also enter into amorphous deals with the heads, as happened under the Uhuru administration when it moved Tobiko out of the ODPP by offering him a cabinet slot.
As part of the institutions created to redistribute the powers of the national executive, county governments were a major highlight of the 2010 constitution. Their relationship with the Uhuru administration commenced with a clear intention on the part of the administration to control the government. However, this quickly morphed into accommodation when direct control proved impossible. With significant powers assigned to them by the Constitution, the county governments posed an unprecedented challenge to the national executive’s powers. In particular, two entities provided for in the Constitution made the national executive’s control of county governments difficult. The first was the Senate, whose core mandate was the protection of devolution. It provided vigilance over how the national executive related with county governments, ensuring that this was per the Constitution.
The second entity was the Council of Governors (CoG), which acted as a single bloc for articulating and protecting county governors’ interests. The CoG elected Isaac Ruto as its first chairperson. Although he was a prominent member of the ruling Jubilee party, Ruto became a vocal advocate for the independence of county governments, with his tenure marked by a combative attitude towards the national executive aimed at protecting the interests of the subnational entities. The quick developmental outputs from a number of county governments, especially in northern Kenya, also mobilized popular support for the entities, thus making it unattractive for the national executive to interfere in their operations.
Finding it difficult to control the county governments directly, the Uhuru administration exploited some of the weaknesses in the county governments in its quest for control of the subnational entities. The county governments were marked by at least two significant weaknesses, which exposed them to possible control by the administration. The first weakness was their overdependence on the national Treasury for resources. The second weakness was rampant corruption, with the units becoming centres of runaway corruption during the first years of operationalisation. The rampant corruption not only led to vicious and disruptive battles in counties between county assemblies and governors, but they also opened up ways through which the national executive directly became involved in the affairs of the county governments in the name of fighting corruption.
The Uhuru administration exploited these two weaknesses to control the county units. Using the first weakness of overdependence on the national Treasury for funds for their operations, the administration imposed on the units debts and retrenched staff from the defunct local governments. It also forced on the county units exorbitantly priced medical equipment without consultation with the units. As for the second weakness of county corruption, the administration deployed the EACC, DPP, and DCI to launch well-publicized investigations and undertake other measures, such as lifestyle audits and arraigning several county officials in court on charges of corruption.
However, since the institutions were under the direct supervision of the national executive, their actions against county officials were often interpreted as the executive’s attempts to stifle county governments. Besides, in at least one case, the Uhuru administration used a governor’s poor record to instigate the creation of a new entity, the Nairobi Metropolitan Services (NMS), which took over many of the functions of the Nairobi County Government, thus lending credence to accusations of stifling devolution.
The Ruto administration will live with the county governments as an inevitable reality. However, it may attempt to impose unpopular projects on counties as the Uhuru administration did. Like the Uhuru administration before it, the Ruto administration may deploy the EACC and DCI to harass governors that may be difficult to work with. However, it is unlikely to go the Uhuru way of divesting a governor of their position and supplanting them with another entity.
Independent Electoral and Boundaries Commission
Of all the institutions reconstituted by the 2010 Constitution, it was perhaps the IEBC that attracted the most deliberate and direct efforts to control it by the Uhuru administration. By the time of ascendancy into power of the Uhuru administration in August 2013, the institution had been restructured under the Constitution, with commissioners appointed through a competitive process consisting of recruitment by a multi-agency panel, vetting by parliament, and appointment by the President. The changes aimed at bolstering the independence of the institution.
The first election supervised by the reconstituted IEBC during the Uhuru Kenyatta era was in August 2017. The IEBC undertook at least two significant measures in gearing up for the election. First, it deepened the use of technology, mainly reinforcing the electoral system from manipulation. The technology consisted of a biometric register, which verified voters to ensure only eligible voters participated in the election. It also involved an electronic results transmission system aimed at eliminating delays in the transmission of results and improving the transparency of figures from the polling station to the tallying centre. Second, it attempted to clean up the electoral process by vetting candidates’ compliance with Chapter Six of the Constitution on Leadership and Integrity.
Despite these changes, the IEBC faced at least three broad challenges. The first involved distrust from the political opposition and sections of society. This led the opposition and other groups to institute a number of anti-IEBC actions. The second challenge consisted of interference in the operations of the IEBC by the Uhuru administration. This interference took three dimensions:
It involved interfering in the procurement operations of the Commission.
It involved the deployment of state agencies to securitise the elections.
Within IEBC itself, it faced internal weaknesses of not following the law in discharging its mandate, corruption in its operations, and failure of the acquired technology.
Together, these challenges led to the nullification of the 2017 presidential election by the Supreme Court of Kenya on 18 August 2017. The nullification and subsequent repeat election, in turn, deepened the Uhuru administration’s control of the IEBC. In the immediate aftermath of the election nullification, parliament amended a number of electoral clauses to limit the judiciary’s role in arbitrating electoral disputes and to enhance the control of parliament over the IEBC. These changes remained active beyond the 2017 election and were the subject of early protests from candidates in the 2022 election.
Just before the announcement of the presidential results of the 9 August 2022 election, the institution had witnessed a split amongst its seven commissioners, with 4 of the commissioners initially denouncing the declaration of William Ruto as the president-elect by the Commission’s chairman, Wafula Chebukati, backed by two other commissioners. However, the Supreme Court of Kenya upheld the chairman’s declaration, thus ending speculation over the election results.
Once settled in power, the Ruto administration may seek to revisit the issue and remove the four commissioners initially objected to his declaration as president-elect. This may prove difficult, however, given the constitutional and legal protection that the commissioners enjoy. Instead, it may only be confined to using administrative measures such as the withdrawal of security services to frustrate the commissioners out of work.
A more likely path of action for the Ruto administration in the quest to control the IEBC may come via seizing the opportunity that the departure of chairman Chebukati will create. The chairman is obliged to leave the Commission after delivering two consecutive elections. The Ruto administration will likely use the opportunity offered by the chairman’s departure to appoint a pliable chairperson with the 2027 election in mind. (