Are governors political giants walking on mosquito legs?

                         Governors address the Press after a past meeting.              [PHOTO: FILE/STANDARD]

By OSCAR OBONYO

Kenya: The position of Governor, as currently constituted, is like the proverbial giant with mosquito legs. Although the occupant heads a county government with a larger political constituency, he or she has insufficient and relatively weaker safeguards.

And following the easy fall of Embu Governor Martin Wambora, in a record two weeks, elected leaders – right from Members of the County Assemblies (MCAs), Members of Parliament in the National Assembly and Senate – and top national government executives are separately (at times collectively) trying to claw away the powers of the office of governor.

In the latest onslaught, members of the Senate and National Assembly have ganged up to clip the powers of the governor, including taking away the title, “His Excellency”, denying them opportunity to fly the national flag on their official cars and introducing county development boards to be chaired by Senators. In the planned arrangement, Senators shall monitor and oversight expenditure in their respective counties. And following Wambora’s debacle, a host of MCAs across the country are now threatening to impeach their governors.      

“Removing a governor from office is the easiest thing in Kenya today. Yet the governor is like a company CEO, who enjoys sufficient safeguards by virtue of his position and having him fired is a nightmare. We must equally come up with legislation that protects governors,” says Vihiga County Governor, Moses Akaranga.

Jealousy

Mr Akaranga wonders why suddenly every elected leader is exhibiting political jealousy towards the governor. Is it because they control a development kitty worth billions of shillings and now the MPs, Senators and even MCAs want a piece of the pie? Or is the Executive getting restless that it is the governors executing development programmes on the ground, therefore hogging all the limelight and credit?

Political scientist, Dr Adams Oloo, attributes the governors’ vulnerability to the current unique system of government. He observes that unlike in the US, for instance, where governors enjoy autonomy and adequate safeguards because of the federal system of government, Kenya’s case is only a devolved system where the governor is answerable to the Senate and National Government.

“Under the federal system, for instance, the Senate cannot impeach say the Governor of California because they are answerable only to the electorate in that state. In our case, the Senate can punish a governor and there are provisions for the President to suspend a county government,” observes Oloo, head of Political Science and Public Administration Department at the University of Nairobi.

His views are supported by human rights lawyer, Harun Ndubi, who concedes that the Constitution has structural weaknesses with regard to county governments: “But as an institution of government and legislators, we need to deal with the structural and systemic weaknesses of devolution instead of targeting individuals (governors). It appears our collective intention is to give a dog a bad name and kill it (devolution).” 

 

Check excesses

However, Chairman of the House Committee on Devolved Government in the Senate, Kipchumba Murkomen says governors are victims of the law, which places sufficient power in the hands of other organs of government commensurate with the powers enjoyed by those in big offices to check their excesses.

“The higher and the bigger the office, the stricter the supervision and the higher the chances of impeachment. That is our law, and neither is the President safe,” says the Elgeyo-Marakwet Senator.   

But Oloo sees a major flow in this arrangement, considering the low academic thresholds set for MCAs as opposed to senators, to whom the duty of impeaching a President is solely given. The political scientist fears that MCAs are more susceptible to throwing a governor out of office on flimsy grounds that are based more on emotions and their weak egos than logic.

When the positions of governors were designed under the Constitution, it was common knowledge that they were next in the pecking order after the presidency – in terms of power and wider political constituency. In fact many viewed governors as members of an elite club, from where the next President would be sourced.

In line with this thinking, candidates for gubernatorial seats were charged a little more nomination fee by most political parties. In fact the major parties, including the Orange Democratic Movement (ODM), The National Alliance (TNA) and United Republican Party charged more than Sh1 million for presidential aspirants, about Sh500,000 for governors, about Sh300,000 for senators, a smaller figure for MPs and much less for MCAs in that order.

And with the introduction of two levels of government, they were destined to be heads of the county government in a similar way the President is head of the national government. Today, however, the governors, some of who got their mandate of more than 300,000 people at the ballot, are on the receiving end from MPs and MCAs, some of who were elected with less than 3,000 votes.

This turn of events begs a host of questions. What changed midway? Are the woes of the governors due to lack of safeguards in their jobs or a result of mere political machinations?  

Denying that the governors’ predicaments are a result of legal weaknesses, Senior Counsel Nzamba Kitonga, who chaired the Committee of Experts (CoE), that midwifed the Constitution making process, attributes it all to the concept of checks and balances.

Like every other office, the governors too, he says, must be accountable. However, Nzamba does not rule out political mischief: “The concept of checks and balances runs through all sectors and if the MPs (in Senate and National Assembly), for instance, are acting maliciously towards the governors, then the courts are designed to offer the necessary protection.”        

The chairman of the Commission of the Administrative of Justice, Otiende Amolo, further explains that the essential structure of the county government reflects that of the national government. The import of this, argues Amolo, who was a member of the CoE, is that the President isn’t more secure than the governors.

“The other safeguards for the position of governor include the fact that the threshold for impeachment must be supported by two-thirds majority of the MCAs. And unlike the President whose fate is sealed by one House, the governor has a second chance of possible review in Senate,” says Amolo.

Conceding that politics could be at play, the lawyer points out that issues of political power struggles should not be equated or blamed on the standing of the Constitution. 

Legal lacuna

Mr Ndubi views the current developments as part of the wider spirited effort by the National Government to reclaim the ground it may have lost after the enactment of the new Constitution: “It is all but a political gimmick meant to bastardise governors in order to demonise and defeat devolution.”

Separately, Oloo points at the unique arrangement – a mix of federal-cum-devolved system of government – as an avenue that has provided a legal lacuna for politicians to exploit “to teach governors lessons”. 

“There are some grey areas in this arrangement, owing to the fact that it is sui generis (a system like no other), and we have no best practices across the world to learn from,” observes the politics expert.

Mr Murkomen, on the other hand, blames it all on an alleged false start: “We pampered the position and focused more on the grandiose of the governor – a big car with flag, red carpets, etcetera – instead of service delivery.” 

In the meantime governors remain the political giants walking on mosquito legs and as Murkomen aptly observes, the situation is made worse by the fact that they are the ones who carry the heavy burden of the people’s expectations.