CIC audit is necessary to ensure balance in State appointments

By Apollo Mboya

The new Constitution unleashed unto us four words “Regional and ethnic diversity” and curiously, the words mostly appear in Sub-Article 4 of various provisions of the Constitution.

 Sample the following: Article 241(4) - The composition of the command of the Defence Forces shall reflect the regional and ethnic diversity of the people of Kenya. Article 246(4) - The composition of the National Police Service shall reflect the regional and ethnic diversity of the people of Kenya.

Article 250(4) - Appointments to commissions and independent offices shall take into account the national values mentioned in Article 10, and the principle that the composition of the commissions and offices, taken as a whole, shall reflect the regional and ethnic diversity of the people of Kenya.

These words also appear in Article 90 that requires that in allocation of county assembly seats, each party list reflect the regional and ethnic diversity of the people of Kenya. Article 130(2) provides that the composition of the national executive shall reflect the regional and ethnic diversity of the people of Kenya. The only exception to principle of regional and ethnic diversity is to be found in Article 91(1)(c) that a political party shall not – be founded on a religious, linguistic, racial, ethnic, gender or regional basis. The Principle “Regional and ethnic diversity” has in turn introduced a new phrase in the appointments to public offices called “regional balancing.” Those who propagate regional balancing often cite Article 232(1)(h) and (1) of the Constitution as underpinning its application. Article 232 states that:

“The values and principles of public service include... representation of Kenya’s diverse communities and affording adequate and equal opportunities for appointment, training and advancement, at all levels of the public service, of the members of all ethnic groups.”

Since the Constitution has re-oriented the governance structure into a devolved system of Government, it therefore means that the county level is the place to apply the test on whether in the implementation of the Constitution, we have applied the letter and spirit of the Constitution in respect to “Regional and ethnic diversity.” In other words, all the appointments made pursuant to the Constitution 2010 is assumed to have taken into account “Regional and ethnic diversity” by ensuring that every county has at least benefited from the appointments made so far.

Casually, one would think that regional balancing allows for greater representation of people from various ethnic backgrounds in matters of exercising public power and decision-making. There is also an assumption that the panels and appointing authorities have either know or have been making decisions on our behalf on the ethnic identities of the candidates seeking these appointments. However, I believe that the notion of regional balance is being distorted much like ethnicity is often used negatively by politicians to antagonise and divide the populace along tribal lines.

 There is no doubt that the Government is the single largest employer in this country and several appointments have been and more are to be made to the Constitutional Commissions & Independent Offices provided in Article 248 of the Constitution. The region referred to here must at all times be the County since that is the centerpiece of the devolved structure we chose in the Constitution. In its simplest form, regional (county) balancing is about appointing authorities ensuring that the prospective and current staffs composing Government offices is based on the county representation while ethnic diversity is about the communities of Kenya being represented in those appointments.

It is not enough for the appointments to comply with the ethnic diversity yet they are not balanced regionally in terms of county representation. My point is this - the fact that appointments have been made representing ethnic diversity; it does not mean that the regional balance has been achieved.

The Commission for Implementation of the Constitution should now take an audit of all the appointments made so far pursuant to the Constitution of Kenya 2010 and inform the public that we have not only adhered to the regional and ethnic diversity, but that the regional balance is in consonance with the devolved county system.

The writer is secretary, Law Society of Kenya