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Executive Order sought to depoliticise delivery of development agenda

By Korir Sing'oei | February 1st 2019

Executive Orders (EOs) are powerful directives issued by the Executive branch. They are a regular feature of the exercise of presidential powers in presidential systems. In the United States, for instance, President Barack Obama signed a total 276 EOs during his tenure. President Trump signed 18 within 12 days of his reign. President Uhuru Kenyatta has signed less than 10 in his six years in power.

Some Executive Orders are controversial, some procedural while others simply reverse orders signed by prior presidents. In the hierarchy of legal force, therefore, such orders rank below the Constitution or statute. The latest EO by Uhuru styled “Framework for coordination and implementation of national government development programmes and projects” has drawn interest.

By Executive Order 1/2019, the President established a Cabinet committee on coordination and implementation chaired by the Cabinet Secretary Interior, to coordinate implementation of the Big Four agenda. Three other structures were established by the EO.

Two important questions arise from the EO. First, whether the delegation of coordination authority of the President is constitutionally permissible. Second, whether the coordination and implementation committee supplant the role ordinarily belonging to the Deputy President.

Without doubt

The President’s authority to organise the Cabinet in a manner that achieves maximum efficiency in aid of delivery of national developmental objectives is unquestionable. The economic loss occasioned by poor coordination, wastage and duplication in Government is without a doubt astronomical. Equally, inefficiencies in delivery of Government priorities are so evident as to require little elaboration.

Nothing, therefore, precludes the President from directing the re-orientation of C Cabinet to make it deliver optimally. If the intention, therefore, is to streamline service delivery, one should find very little reason to agitate against the EO. Further, and more pertinently, if the purpose is to depoliticise development priorities, the EO will be warmly received.

Indeed, in Fred Matiang’i, the chair of the Coordination and Implementation Committee, the country will find an apolitical, objective and energetic State officer. Depoliticising development is important in a country in which often, development choices are informed by access to political power. This committee, therefore, has the real chance of reversing skewed public sector priorities in favour of equitable development in line with Vision 2030.

Concern may be raised on the extent to which the coordination framework has sought to leverage upon the existing provincial administration system. Another concern relates to integration of county institutions in the framework.

Find ways

While the National Coordination Act has reconceptualised the system of the Provincial Administration as urged upon by the Constitution, history has shown that extending the scope of administrative officers beyond the security docket is always fraught with risk. Consequently, it is hoped that the EO and the implementation thereof does not unwittingly weaponise the former Provincial Administration into an agent for executing nefarious political purposes.

If this latter scenario were to unfold, rather than operate on the cutting edge of efficiency in service delivery, the Provincial Administration would be the bleeding edge that unleashes further political fragmentation.  

A cardinal principle embodied in Article 189 of the Constitution is the need for the two levels of Government to accord respect to the functional and institutional integrity of both. This means that the regional and county implementation and coordination committees must find ways of engaging effectively with county institutions for the avoidance of conflict. Failure to achieve this comity will disturb the intended efficiency and do harm to the realisation of the Big Four agenda.  

Moreover, sections of commentators have erroneously suggested that the EO seeks to water down the DP’s role. Nothing in the EO is basis for this determination. The constitutional roles of the DP are to deputise the President; act as President in the latter’s absence; succeed him in the event of vacancy in the office of president; or undertake such other functions as may be donated by the President in writing. The coordination role has never been donated to the DP under this administration. He, thus, cannot be said to have lost what he never had.

Dr Sing’Oei is Legal Advisor ODP.

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