CONSTITUTIONALISM, INSTITUTIONAL INTEGRITY AND THE 2017 PRESIDENTIAL BATTLE IN KENYA

Raila was among the key people that delivered a new constitutional dispensation in Kenya. Given change agents like Ruto are not available; we still have to beg Raila to finish the job. I mention Ruto, because apart from Raila, the other shrewd and passionate politician, I have seen, that could fit Raila’s shoes in Kenyan politics is Ruto. Someone has to tell Raila that we still need him; we may not necessarily need him as a president but he has to deliver constitutionalism and institutional integrity for posterity. When history is written, whether Raila was a president or not will be immaterial, what will matter most is the fight for political freedom and a democratic dispensation in Kenya. Additionally, his role in constitutional change in Kenya will always be highlighted.

The general election year, 2017, is fast approaching and many will want to reduce 2017 politics to a battle for statehouse. The new constitution is supposed to have tilted power away from statehouse. However, due to Jubilee politics, we have returned to personality cult like politics. The PR juggernaut is out to immortalize Uhuru Kenyatta by making anything worth mentioning about in Kenya directly credited to Uhuru. As a consequence, all independent institutions have been subordinated to the executive and therein are the problems.

Kibaki can be credited for many things but above all was his fidelity to institutional integrity and independence. Whether by design or default, Kibaki enabled institutions to provide leadership and to chart the way in given national issues. During the grand coalition government, we had IPOA, NACADA, EACC, IEBC, PPOA and several commissions that were seen to work rather than being overshadowed by the executive. While the leadership of these institutions may be to blame for their waning influence, the executive has a clear mandate to ensure the institutions are fully functional. The leaders of the independent institutions in Kenya have failed in harnessing constitutional powers and proactively participating in national debates and programming.

Under Jubilee government, the first casualty was the Supreme Court and the Judiciary by extension. The ruling that many have claimed favored Jubilee over CORD in the post 2013 election left the Supreme Court and the judiciary in general smarting. Competing jurisprudence emerged with the high court having a different take on election cases that seemed to counter the logic of the Supreme Court and many magistrate courts. With the likes of Ahmed Nasir of JSC obviously taking sides with Jubilee, undertones have diminished the integrity of the Judiciary or some judicial officers.

The Second institution whose integrity has suffered considerably due to Jubilee politics is IEBC and Isaac Hassan the chairperson. The 2013 election shenanigans aside, Isaac Hassan has maintained an adversarial approach towards CORD just as CORD has had no sympathies for him. However, the perception or actual bias towards Jubilee has inclined IEBC to becoming an institution that many in Kenya have little faith in. The lack of a genuine effort to address some defects or weaknesses of the institution still manifest. I believe strongly that for such a critical institution, all should be done to restore its independence.

The third institution that needs redeeming is the National Assembly. The tyranny of numbers and politics of sycophancy have turned our national assembly into a ridiculous and theatrical institution. The height of failure by out parliament is lack of sober debate on issues like agricultural committee report on Mumias Sugar Company, The passing of security laws, the recent shouting match over Waiguru and her NYS, just to mention a few. There is no doubt that the National Assembly seems beholden to Executive manipulation rather than being an independent arm of government.

The joke that is the “fighting corruption crusade” by the executive illustrates how the executive does not believe in strong institutions. By all means, the executive should have been more systematic in how it tackles corruption issues. The first step would have been to ensure a strong, well financed and independent EACC that has the full support of the president. Instead, the executive manipulated commissioners to resign and then purported to unleash a very shoddily researched list of shame. The only thing that was achieved in the fight against corruption is to kill the EACC; the rest was just a show.

Currently, a funny campaign is being led by MPs to rid Kenya of what they call 2^nd generation and illicit brews. If the executive believed in institutions, such a campaign would have been championed by institutions rather than politicians and hooligans. Just like a recent conference on terrorism, bringing different stakeholders to deliberate and work with Kenyans to address alcoholism would have yielded not just effective but sustainable solutions. Instead of systematically working through administration structures in partnership with NACADA and CSO that handle alcoholism; the president rubber-stamped the hooligan approach. The hooligan approach taken by the executive renders institutions like NACADA in bad light. The height of it was the President’s scathing remark about the institution.

There is this pet project called HUDUMA CENTRE. While many appreciate the introduction of Huduma centers in Kenya, I see another affront on institutions. Why do I consider it an affront on institutions? Huduma centers are extra cost centers that are supposed to perform functions, which state departments are supposed to perform. Why did Jubilee government not believe in state machinery enough as not to use them rather than create a parallel system? If it is about creating one-stop centers, would existing structures not have been integrated through use of ICTs? I thought government offices have been devolved to the village level? Instead of spending much money creating Huduma centres, maybe those offices at sub county level should have been equipped and integrated to more effectively and efficiently offer services to Kenyans.

The final institution that I will discuss is NYS. This institution has been compromised by being politicized. In a bid to show Jubilee as working, real institutions that would address the plight of youth have been sidelined. The starting of Uwezo fund was a no brainer because experience with the Youth Enterprise Fund should have made it abundantly clear that these funds have little impact on changing fortunes for youth. What the youth need is targeted programming that enables them to participate in programmes that generate livelihoods. New NYS model is good to the extent the youth are involved in income generating activities and socially transforming activities. However, at what cost? Would that money have been better used for youth empowerment? As I shared in another post, the 25 billion for NYS can upgrade many youth polytechnics, help start many youth enterprises or support rolling out of development programmes in agriculture that youth can directly hook into and gain a livelihood. NYS as a political tool cannot go unchallenged and such suspicions are bound to haunt the institution for long.

The mentioned cases go a long way to show how Jubilee government is not keen on institutionalism and institutional development. Without strong institutions, it is difficult to realize constitutionalism. Laws are only effective to the extent they are enshrined in systemic institutional processes. When you have a president still behaving like he is above all institutions, there is every reason to worry. What Kenyans need is not Benevolence but Right.

How does Raila come into the picture in relation to desired level of constitutionalism and institutionalism in Kenya? The only real check for presidential powers is Parliament. Raila has to focus on salvaging parliament and with a sober and fully functional parliament, institutional integrity might be achieved. In the interest of all Kenyans, the 2017 battle should be about denying the president a clear majority in parliament. What many Kenyans have not realized is that with devolution, what we need is a sober parliament and desired resources will reach the grassroots for development. You do not need a benevolent president, what we need are right leaders in parliament who will interrogate and redefine government agenda. With a robust parliament, the judiciary is likely to find its step again as an equal and independent arm of government. When the executive is checked by a serious and independent parliament, institutional integrity will not be trampled upon by the executive.

I am still crossing my fingers; I have a hunch that Ruto may want to start his quest for presidency in 2017. If that happens, scales will tilt dramatically and whether Uhuru is re-elected or not, he may not enjoy the tyranny of numbers in parliament. Without the numbers veil, PR acts in the name of development will be smoked and hopefully hard questions asked regarding executive plans and activities. If Ruto does not bolt, then it is Raila to even forget presidential ambitions but focus on controlling legislature both at the national and county levels. The numbers can be achieved easily, as long as the right candidates are identified and they are given the right support. The formation of Jubilee Alliance Party is a blessing in disguise because many good candidates may miss out on the JAP ticket. If what happened in Kajiado central is anything to go by, there are many Memusi’s to grab.