Petty issues should not derail new laws implementation

By Kamotho Waiganjo

Two events in the last week have elicited worries that all is not well with the process of implementing the Constitution. It has been alleged that nefarious forces are determined to re-direct the process towards a non-reformist direction. Concerns about implementation should never be dismissed as the cries of attention seeking activists; they should worry anyone who desires to see the Constitution yield fruits of reform. But not all necessarily have merit.

Firstly, there is concern about the vigour with which the Executive is pursuing the "restructuring" of the Provincial Administration. Those who oppose the actions by the Office of the President feel that the Executive is misinterpreting the Constitution by defining restructuring to mean "retain but rename".

Supporters of the OP point out that the county governments are not yet in place and until they are, the Executive must retain the existing administrative structures. It is also argued that even after 2012, the Executive will still have significant functions within the counties, which will be carried out by a restructured "provincial" administration.

In a sense both perspectives are right. It is rather obvious that the reason the "restructuring" clause was inserted in the Constitution was largely strategic; it was a referendum sweetener to reassure the still very powerful and ubiquitous Provincial Administration that they would not be jettisoned in the new order.

The vagueness of the Clause was therefore deliberate, it allowed for multiple interpretations. But two realities must be recognised. Firstly, the governance structures in the new Constitution have no place for the Provincial Administration in its traditional role as the eye and fist of the Executive.

That power has been bequeathed to elected representatives. However, we must note that we remain a unitary state in which the Central Government will continue to play a key role on issues that the Constitution has left as part of national agenda. This agenda will be pursued through an executive appointed system, probably a re-oriented "provincial administration".

Any criticism of the OP should be accompanied by proposals about how to balance these realities.

The other furore involves the publishing of several Bills by the Ministry of Justice. Here, some of the complaints are ill advised. So far the ministry has published only three Bills - the Bill on the Commission on the Implementation, the Vetting of Judges Bill and the Judicial Services Bill.

 It has been alleged that the Ministry is usurping the role of the Commission on Implementation. But honestly, what was the Ministry expected to do? Wring its hands until the commission is in place and ignore the tight deadlines set by the constitution?

Some of these Bills, like the Judicial Services Bill, have been in the public domain for ages and have only been panel beaten to align them with the new Constitution. My counsel is that our energies should be spent critiquing the Bills than being concerned by their origins, considering our tight timelines. For example, how can we set up a vetting system for Judges in which the legal profession has no input?