By Hassan Omar Hassan
The Sixth Schedule, Article 17 of the Constitution provides that, “Within five years after the effective date, the national government shall restructure the system of administration commonly known as the Provincial Administration to accord with and respect the system of devolved government established under the Constitution.” Period.
Now what part of this provision does President Kibaki or his handlers not appear to understand? Who told Kibaki he is the “national government” within the meaning of this provision? After this anomaly is pointed out, the President then issues a subsequent gazette notice to ‘remedy’ the defect.
He then makes reference to his ‘powers’ in the old Constitution and purports to simply be redeploying County Commissioners pursuant to these powers. He too fails in this regard. Our old Constitution and order had no counties. The net effect being that the President created new offices on his own volition and purports to then appoint County Commissioners. Mzee that age of such unfettered discretion is gone. Gone and gone forever.
I know there is a lot of nostalgia about those ‘good’ old days. When the Commander-In-Chief could do anything and everything. You must though come out of the dictatorial, monolithic hangover. It’s a new Kenya. The old ways must change. Everyone is bound by the Constitution and every Kenyan is equal under the Constitution.
Now, the Attorney General has awoken to his responsibilities. Prof Githu Muigai, a mentor to many advised that you should not appeal Justice Mumbi Ngugi’s decision quashing your “unconstitutional” appointments or ‘redeployments’. Justice Ngugi did further indicate that you failed in numerous ways. You failed the test of article 10 on National values and principles of governance and in particular “participation of the people”.
Now we pumbavus might not be too smart with distinctions in economics, but the law demands the participation of the ‘foolish’. Hard times for those of us who were youth in 1963 and are used to a different way of doing things. The reality though is that things have changed.
Article 27 on Equality and Freedom from Discrimination and in particular sub-article 8 required that at least one-third of the County Commissioners ‘redeployed’ should have been women. Further it was required of you by Article 29(2) of the Sixth Schedule of the Constitution and the National Accord and Reconciliation Act to have consulted the Prime Minister.
Now, think as you may about this Raila Odinga, but ‘unfortunately’ the law demands of you to consult with him in making appointments. You do recall Justice Kreigler saying that it was difficult to determine who won the elections. So in moving Kenya forward, we made compromises which we must appreciate.
Bungling elections and refusing to give up power became a model for other African leaders. This bad precedence has though been effectively dealt with. Subverting popular will and use of violence as a means to retain or gain power can easily earn you a date with the International Criminal Court. How I long to have a one-on-one with former Ivory Coast President Laurent Gbagbo.
Kenya is building its own precedence. It is rejecting your appointments through tacit affirmation of the court. We are rejecting ethnicity, corruption and impunity. You have a few months to the constitutional lapse of your presidency. There is no other interpretation to this provision. Since you are running out of time, why don’t you just appear to be respecting the Constitution and taking heed of popular will? We might just remember you for that.
The writer is a lawyer and former commissioner with the KNCHR