Judiciary key to Devolution, By Ndung’u Wainaina
In 1997, the civil society constitutional reforms movement under the stewardship of the National Convention Executive Council (NCEC) coined Katiba Mpya Maisha Mapya, aslogan aimed at connecting people’s lives with a new Constitution. More importantly, it was about a new constitutional order to better ‘Wanjiku’s life’.
Improving Wanjiku’s life, according to the Katiba Mpya Maisha Mapya slogan, is about offering education to children to compete in the global marketplace while guaranteeing quality affordable healthcare. It is about development and growing strong, sustainable, inclusive economy with cheap clean energy and transport. It is about investing in science, research and innovation while developing cutting-edge trade, investment and industry opportunities.
Katiba Mpya Maisha Mapya is about developing and strengthening democratic governance accountability, security and justice institutions.
The Constitution of Kenya 2010 is about safeguarding, promoting and upholding Wanjiku’s human freedoms. It enables Wanjiku to realize development aspirations through human rights and democracy. It is about social inclusion, access to information and transparency, effective civic participation, gender parity and greater accountability to the law of the land and to the citizenry.
The Bill of Rights and Devolved system of governance are key to realizing human freedoms and rights. This article will therefore focus on three things namely: the role of the Judiciary in enforcing rights and freedoms especially in the context of Devolution, and governance accountability.
Judiciary
Like any other arm of the State, it derives its authority and legitimacy from the people of Kenya. It interprets, protects and promotes the purpose and principles of the Constitution. The Constitution is the supreme law of the land and provides the visional basis for the transformation of the state and society. It is these uniquely transformative features of the Constitution that progressive judges must seek to use to redress the legacy of inequality, exclusion and deprivation by strengthening the devolved system of governance. The country must never forget that the making of the Constitution was a culmination of intense protracted negotiations with unprecedented levels of popular participation across all sectors of society. Therefore, the Judiciary cannot lose the hindsight of this fact because of political pressure. Doing so would be grave mistake.
However, the understanding and application of constitutional principles cannot remain static. The Indian Judiciary was historically heavily criticized for siding with wealthy and powerful people while subjugating the masses. However, it redeemed itself by robustly and courageously interpreting the Constitution. Thus, the Kenyan Judiciary has a unique opportunity to change the course of this country. It should expect resistance by a corrupt political system but fortunately, there are competent, courageous and transformative judges ready to withstand the heat. All judicial officers are called to duty.
Three reasons why there is nothing like judicial activism within the Kenyan Judiciary. Firstly, the courts’ work is to ensure fairness in administrative action. Secondly, to protect the constitutionally guaranteed fundamental rights of citizen; and thirdly, to rule on questions of legislative competence between the center and the periphery. Courts have powers to enforce these rights unconditionally. Courts are delivering the Constitution’s vision. They have with certainty started binding the polity to its core constitutional principles and purpose. Courts must therefore remain avenues of guarding against re-introduction of centralized dictatorial system of governance and affront on civil liberties.
An independent Judiciary is essential to a strong, predictable democracy. It is therefore worrying when there are sustained attacks on the Judiciary. The Constitution is not static. The Constitution-making did not stop at the referendum. The Judiciary has the responsibility to breathe life and fresh air to the Constitution through progressive legal jurisprudence.
History will question whether judges defended the very foundation of the Constitution.
While judges should not be above criticism, the guiding principle remains that they can only be subjected to removal or other disciplinary actions for criminal or corrupt conduct and not judicial acts. The constitutional judicial independence is one of the crown jewels of the new governance bestowed by the Constitution. We must respect, promote and uphold it.
People of Kenya have made great strides in rebuilding the judiciary. They must fight hard to defend its independence. People of Kenya must never succumb to political intimidation or threats.
Politicians must be thoroughly subjected to rigors of law, transparency and accountability while executing their constitutional duty of representation, legislation and oversight.
The National Assembly and Senate are so scared of the Judiciary delivering judgments that will completely defang, tame and vanquish their unbridled appetite to control and execute functions of other arms of the state including devolved public funds. No wonder both Houses have launched unrelenting attack on the Judiciary.
The second issue is about the role of judiciary in promoting ethical governance and political accountability. At the center of the tussle between County Governments, Parliament (Senate and National Assembly), Judiciary and Executive is governance and political accountability. The modern state is supposed to be a system of a reliable, accountable and institutionalised authority that facilitates public action and makes possible collective choices. Without a capable state, citizens are unable to work together to improve their livelihood.
A central task therefore of modern politics is building a powerful system of public authority, capable enough to advance the interests of ordinary citizens, and accountable to the people whose name it claims to rule. One way to understand the endurance of governance and human rights pathologies from the corrupt authoritarian system is failure to introduce effective mechanisms of political accountability. In true constitutional democracy, vertical and horizontal dimensions of political accountability are central.
Vertical accountability refers to citizens’ efforts to enforce standards of proper conduct on the state and its officers. The key mechanisms of vertical accountability are public information and electoral sanctions. Political accountability is about answerability, justification, and enforcement. In order to be accountable, public officials have to provide information about their decisions and how they were taken. Accountability also involves the application of sanctions to those found to have acted improperly.
On the other hand, horizontal accountability (intrastate accountability) refers to the capacity of state institutions and bodies themselves to check the abuse of state power.
The constitutional process of horizontalization of government shows that it actually takes place at three levels: Relationship between governmental authorities and society; relationship between public organizations and organizations inside and outside the government; and relationship between the individual public servant and others inside and outside the government.
As has been demonstrated lately, the instruments of intrastate accountability are mostly politically vulnerable. The Judiciary and various commissions have been subjected to different degrees of political pressure. Intrastate accountability cannot be maintained if state bodies lose their mutual independence or if they become subordinated to national state agencies or ruling party politics. Agencies of horizontal accountability have performed dismally for many years because of poor administrative capabilities and politicised appointments.
The horizontal accountability arrangements must fit with the type of horizontalization of government structures. Further, horizontal forms of accountability, just as vertical accountability must meet the requirements of the democratic constitutional state, i.e., transparent responsibilities, well-defined interested parties, a good information supply, debate opportunities and sanctioning options.
Parliament and Executive arms of the state fear the constitutional powers given to Judiciary to rule on the constitutionality of their legislative and administrative actions. The Judiciary is required to scrutinize and enforce accountability actions of its co-equal arms of government. It exercises the constitutional power of judicial review to protect and enforce the fundamental rights and rule on questions of legislative competence and oversight powers.
Devolution
The primary objectives of Devolution are strengthening democratic institutions and rule of law; spurring spatial inclusive economic growth and human development, trade, and investment; advancing peace, security and social cohesion; and promoting equal, accountable and inclusive opportunity and development for all. The County governments are now the engines of participatory democracy, inclusive human development and human security.
Devolution as a doctrine and practice is yet to be fully understood by elected leaders, government functionaries and ordinary people. There are generalized accusations and blanket condemnation without serious analysis of what is failing and succeeding. Each county is facing its unique challenges but there are also shared problems across the board. There is need for a proper mechanism of monitoring and evaluating devolved governance processes in order to provide the correct solutions.
The county governments are exercising the sovereign will of the people. This sovereignty is about political, economic, security and administrative self-determination of people at their local levels. Counties need credible, impartial and legitimate public institutions necessary for creating the conditions and rules for sustained, predictable and inclusive economic growth for human development.
The Governor exercises the executive authority, together with the other members of the County Executive by (a) implementing county legislation; (b) implementing all national legislation within the functional areas set in the Constitution; (c) developing and implementing county governance, security and economy policy; and (d) co-coordinating the functions of the county administration and its departments.
For effective devolution to be achieved, four critical issues that are major sources of tension, conflicts and outright sabotage on devolution implementation should be addressed.
First, the entire governance system should be restructured, reorganized and rationalized to respect Devolution. Both the county and national government should consolidate certain processes, organs and institutions to avoid duplication.
The entire old system of the national government, including provincial administration and other national agencies must be restructured and reorganized to accord with and respect the devolved system of governance. This process will strengthen devolution, drastically cut government wage bill and create an effective, lean and less costly organizational structure of government through assigning to the county administration certain national government functions.
The national government’s presence at the county should be very minimal, only represented by technical officers working in consultation, coordination and cooperation with the county government counterparts. All elected state officials at the county level play a central role in identifying and prioritizing projects in their respective constituencies and wards. These projects are consolidated and cost under the County Integrated Development Strategy (CIDS). The county government is the implementing agency while the county assembly, and MPs play prerequisite role of allocating resources, passing enabling laws and oversight.
Secondly, the national economic and social policy must drastically change. Flowing from the Constitution and the Supreme Court of Kenya legal opinion reference No. 2 of 2013 on Division of Revenue, the country has to fundamentally alter Vision 2030, which is generic of Session paper 10 of 1965 of centralized-controlled practice of development. Vision 2030 cannot oust the Constitution. It is for Vision 2030 to change and conform to the constitutional reality of devolved governance by ensuring long-term socio-economic policies at the county level.
The Supreme Court of Kenya legal opinion No. 2 of 2013 shredded centralized system of development responsible for uneven, unequal and exclusive socio-economic development. Therefore, Devolution is a core promise of the Constitution
Thirdly, redefining and transforming the civil service. With a new constitutional order, the adoption of a devolved system of governance and service delivery together with escalating global competition, Kenya should have a responsive, objective, evidence-based, creative and practical civil service. It should competently support the well-being and prosperity of the country and turn development vector from narrow base consumption-oriented economy to a broad well-grounded knowledge driven economy.
The old order civil service sector must be overhauled to inject professionalism, efficiency and integrity. Such civil service is the engine for advancement of the country’s economy, security and governance. The Public Service Commission (PSC) together with the County Public Service Board (CPSB) has the appropriate constitutional and institutional independence to create a highly skilled, professional and accountable civil service with new work ethics and culture.
Fourthly, the decentralization of democratic policing and law enforcement system is key. The national government has the responsibility and duty on broad national security policy. An effective people-centred county policing and law enforcement system shoulders the burden of implementing the policy. The county governments therefore have the responsibility of guaranteeing residents security and hence play pivotal role in exercising civilian oversight.
While the Inspector General of Police retains the overall command of the national police service as per the Constitution, he/she remains the officer in charge of police service at the County level. An effective county-based policing and law enforcement is consistent with devolved governance and is the new corporate strategy for the modern police. County policing is about about providing proactive policing and law enforcement that is informed by local distinct conditions.
In conclusion, the County is the new engine of participatory democracy. At the heart of this new devolved system of governance and development policy framework is right to equal development, improving livelihoods and living standards of all people, human rights and the sharing of wealth and opportunities equitably. It offers the nexus between governance, security and economics while influencing and shaping the direction of local economy. County government should therefore make the right long-term strategic policy decisions, anticipating and adapting to change, and meeting local expectations.
Writer is Executive Director, International Center for Policy and Conflict: nwainaina@icpcafrica.org
