Governorship to be most fiercely contested in poll

MPs and Senators have had to live with the reality of diminished glory. It’s true the National Assembly is the anchor of the legislative process and oversight functions of the State, but it’s not the rooster that it was under the old system.PHOTO: COURTESY

It’s at a tall order for anyone to fully grasp the complete import of a new constitutional dispensation. That’s because a constitution is a complex document replete with an internal dynamic logic of its own.

Not even the framers fully comprehend their handwork, let alone predict with certainty how it will be implemented in practice. Or how it will evolve. Or how the courts — and various stakeholders — will interpret it. Some 240 years later, the US Constitution — the oldest such document — is still being contested, and reinterpreted. That’s why we shouldn’t be surprised that the 2010 Kenyan Constitution — barely six years old — is flummoxing everyone. Welcome to constitutional law.

I’ve argued before that the final framers of the Kenyan Constitution — MPs — didn’t fully internalise some basic facts about the document. That’s because they were distracted by seemingly important but arguably less momentous questions.

They were blindsided by how many and the types of legislators, the nature of the cabinet, the divvying up of the spoils by ethnically-coded language, the powers vested in the imperial executive, and social issues like abortion and sexuality. Lost in translation was the crucial question of devolution and what it would mean for the new republic. It’s true the framers made sure counties corresponded to major ethnicities — largely tracking colonial cartography — but that was the extent of their curiosity.

But the ignorance of the framers is starting to recede. In the last two years, the mothers and fathers — mostly fathers — of the Constitution have realised that the real game is being played not in Nairobi but in the counties. The county government has emerged as the single most important locus of power and democracy in the republic.

The sheer size of resources and raw power wielded by the counties has even alarmed Nairobi. So much so that the Executive has attempted to choke that baby in the bathtub. To its chagrin, the Executive has found that it lacks the tools to carry out such a political murder even after it left in place the obsolete structures of the former provincial plutocrats. The parallel helmeted provincial factotums are largely a sad lot.

In the new structure of the Constitution, the legislature has found itself with fewer powers — as has the Executive.

MPs and Senators have had to live with the reality of diminished glory. It’s true the National Assembly is the anchor of the legislative process and oversight functions of the State, but it’s not the rooster that it was under the old system. In the old order, MPs bestrode the earth like colossi. It was among them that State House elevated appointees to the Cabinet. No longer. Back in the village, the MP was a demi-god.

Today, the MP is but one of the many subjects of the governor. In a cruel twist of fate, the MP now has to fight for survival against rambunctious MCAs. Many MCAs — their appetite whetted by power and money — want to replace their local MP.

The biggest casualty of this constitutional re-organisation of power isn’t the MP, however. It’s the Senator. The Senate is the most neutered of all the new institutions. Methinks the country didn’t fully think through the role of the Senate.

First, the Senate is subordinate to the Assembly in virtually every respect. It’s an upper house — but not in the same way that the US Senate is. The Assembly has often ignored the Senate and the governors have regularly thumbed their nose at it. When push came to shove, the courts have sided with

governors over a petulant Senate. In other words, the courts have played the role of the guardians of devolution. Ironically, the Senate was supposed to protect the interests of the counties. But it’s Senators who have had the biggest beef with governors. It’s not rocket science to figure out why.

Many governors fancy themselves chief executive in the mould of the head of state. Some have erected their own mini state houses. They have customised podiums from which they address press conferences and the hoi polloi. They command escort motorcades. Some even want to be referred as “excellencies.” They have First Ladies (not First Men yet).

In the extreme, some governors strut their stuff like potentates. The Senators are green with envy. That’s because the most powerful MPs ran for the Senate mistakenly believing that it was more powerful than either the Assembly or the county governorship. To add salt to the wound, governors have generally sidelined Senators. That’s why Senators are now revving their engines to run for gubernatorial offices. The most pitched battles for the 2017 elections will pit incumbent governors against sitting Senators. I don’t lament this fact — I welcome it because it clarifies the import of devolution under the 2010 Constitution.