New order now places presidency in its rightful constitutional shoes

By Barrack Muluka

The ending year will go down in history as the year when we eventually tamed a draconian presidency.

It will also be remembered as the year when the Frankenstein monster that is Kenya’s Parliament began coming of age, even as hope in the war on corruption went to the dogs.

The Constitution passed the first acid test in February. They say that old habits die-hard. Even such an erudite and urbane gentleman as President Kibaki has been the victim of bad old habits. Our most pernicious old habit has been unilateral draconian exercise of presidential authority, through three regimes.

The August 2010 Constitution came to take away this state of affairs. The President, having cause therefore to know that things had changed, still went on to appoint a new Attorney General, a Chief Justice and a Director of Public Prosecutions, almost as if nothing had changed.

It was to prove a stillbirth as Parliament and the Judiciary asserted themselves before a previously unassailable Executive. It left Mzee Kibaki with humble pie in the mouth and an egg on the face. Two of the persons on the President’s initial list, Prof Githu Muigai and Keriako Tobiko, eventually made it back successfully, but not without public debate and parliamentary input that placed the presidency in its rightful constitutional shoes.

Beyond stillbirths and egg faces, appointment to senior public office was opened up to public scrutiny and accountability.

Kenyans watched on live television as those who would aspire to be captains in key government positions were grilled and fried, sometimes in humiliating fashion.

The spinoff are institutions we can start believing in, provided that the holders will uphold the dignity of the offices and be faithful to their oath of office. We have created a Supreme Court that we can trust and an Independent Electoral and Boundaries Commission that shows promise, among other Constitutional bodies.

There have, however, been certain horse-trading exercises between President Kibaki and the Prime Minister Raila Odinga that have left observers wondering about the two principals’ individual and joint commitment to reform. Appointments to most public bodies would suggest that the two are not averse to settling for homeboys and home girls who will be their masters’ voices.

They have also demonstrated that they will not necessarily settle for the most competent person, one who scores best at preliminary interviews. The nearer the bone, the sweeter the meat, they say. President Kibaki and premier Raila will, therefore, instead, settle for meaty considerations, best known to the two of them, rather than focus on merit.

The appointment of the seven Supreme Court judges was not, itself, without hiccups and drama. The constitution of the court was thrown into a spin with court cases that interrogated the constitutionality of the gender ratio in the appointments. With expanded freedom, Kenyans are increasingly learning to be litigious.

On the one hand, this could be a mark of greater faith in the justice system. Kenya burnt following disputed presidential election results in December 2007. The party that was declared losers said it did not have faith in the judiciary and would, therefore, not seek redress there.

The rest was mayhem. The alacrity with which Kenyans are now taking civic matters to court could be nurtured to obviate violent avenues of conflict resolution in future, if the Judiciary itself will recognise its crucial role and refrain from sliding back to a past of legal obloquy.

For its part, Parliament has become assertive, perhaps worryingly assertive. It risks degenerating into a dreadful monster. On the constructive part, it has demonstrated to the President and the Prime Minister that it will be nobody’s rubberstamp.

As the nation crosses into the New Year, the two principals will still be agonising over their appointment of three individuals to the Ethics and Anti Corruption Commission.

The three appointments were rejected by the Parliamentary Committee on Justice and Legal matters. The committee brought to the House a report that indicted the appointees of deficiency of passion to fight corruption.

However, Parliament rejected the recommendations of the committee by a narrow majority vote. But even before the two principals and their men could get the celebration party going, another rabbit of frustration was pulled out of the bag.

The rejection of the committee report was not the same thing as acceptance of the three names. Thus, the three names shall come back to the House at the end of January, promising a charged start for Parliamentary business next year.

That is as far as positive side of parliamentary assertiveness goes. For the charge against the anti-corruption trio as dispassionate in the war against corruption does not cut much ice, however.

At the time of dissolving the PLO Lumumba-led Kenya Anti Corruption Commission (KACC), members were gleeful and boisterous in accusing Lumumba of passion and zeal. People who were then under the searchlight of KACC made hay out of the commissioners while the parliamentary sun shone.

They said all manner of appalling things against Lumumba because of his passion. They rejected passion. Now they say that they want to see passion.

It is a worrying trend that you observe in a Parliament whose members take positions on issues on the basis of tribe and an assortment of other selfish interests, rather than public spirit and good. The matter of taxing MPs came up again this year. The Members were beholden together in outlawing any attempt to tax their rotund and bloated earnings.

Parliament has learnt to threaten, blackmail and humiliate just about anybody and everybody on anything and everything, regardless of what the law says. Members get it their way all the time, regardless that their way is against the law and public spirit.

When Kenyans created a powerful Parliament in a Constitutional Referendum last year, they thought it was a public-spirited Legislature they were fighting for. They assumed that members would take seriously the honorific title that precedes their names. It appears that this is, after all, just a beautiful tag that that is nice to have in one’s name.

This is especially so if you are the kind of person to introduce yourself as, "I am Hon Bwana Fisi Mshamba Kabisa," contrary to the traditional use of honorifics. It feels good and that is about as far as Parliamentary honour in Kenya would go.