IN THE CROSS HAIRS:Governors during a stakeholders meeting at the school of government yesterday. Photo/File
ABOVE PETTY SQUABBLES?: In case of political and ad- ministrative institutional disputes, the Executive should encourage dialogue, offer or initiate alternative dispute resolution.Photo/File
The fact that devolution is under serious threat is no longer in doubt. The threat is both real and multipronged.
The most serious threat emanates from four institutions or organs of State that were intended - and have the primary constitutional mandate - to safeguard and implement it: the National Executive; the County Governments; Parliament (Senate and National Assembly); and the Judiciary. Unfortunately, the worst threat to devolution is posed by the county governments, the Senate and the Judiciary.
County Governments have become rogue and unaccountable
It’s unfortunate because the primary beneficiaries of devolution are the County Governments, especially the voluble and intransigent governors - and the senators.
Yet, instead of operating under the principles of devolution such as democracy, separation of powers, and effective delivery of (high quality) services to the people and counterbalancing the power of the national government; county governors have transformed themselves into small tin gods. Rather than perform their core functions, Governors demand to be addressed as “Your Excellences.”
Instead of using the billions it has been allocated to construct roads, build health care facilities and schools for the people; the Governors have resorted to building massive palaces for themselves.
Instead of working tirelessly to improve our agricultural productivity, especially food security; they spend our hard-earned taxes frolicking in exclusive resorts and five star hotels.
Instead of working on coordinated strategies for investments and economic growth; they make frequent foreign junkets with their girlfriends, boyfriends, spouses and other hangers on.
Instead of working in collaboration, partnership and cooperation with the National Executive and Parliament; Governors have been involved in cheap and childish power trips, issuing empty threats and attending useless and expensive conclaves.
There is ample evidence that County Governors, unlawfully dish out public land to shady characters from abroad under the guise of “attracting investment.”
Not only do County Governors have no legal power to expropriate public land; more often than not, the cumulative values of the land purportedly ‘donated for investment’ have more monetary value than the ‘foreign’ investments in question.
Moreover, the ‘land donations’ are usually shrouded in secrecy, opaqueness and are clearly unlawful.
Some County Governors are known for staging frenzied PR media blitzes rather than unveiling substantive development policies, blueprints and initiatives. And when caught with their hands in the till, they rush to court for injunctive orders. Or they purport to have “cleared debts” in relation to alleged frauds.
County Governors have had a dubious record of paying astronomical rates at hotels rather than staying in their luxurious homes. When angry citizens confront them for explanation why they are wasting public funds, some have had the temerity of claiming either that they don’t have ‘official residence fit for Your Excellences,’ or that their electors wouldn’t allow them to enjoy their peace and quiet if the new Lords stay in their county homes.
Essentially, some of these governors are trying to run away from and avoid the people that elected them only eleven months ago. They seem to have only been after the power, glory and wealth.
Governors are known to spend hundreds of millions of shillings on expensive fuel guzzling vehicles rather than utilise the scarce resources to purchase reasonably-priced and environmentally friendly ones.
Car-pooling, which has become a popular and standard budget ameliorating strategy for technologically advanced and rich Western countries has never even been considered. Apparently, vehicles that were used by the former municipal councils aren’t good enough for the new Lords.
According to the Auditor General, Governors routinely misappropriate and embezzle public resources. Ironically, when caught, they run to our unreformed courts, seek and obtain injunctive orders against being investigated or prosecuted.
(The Director of Public Prosecutions and the Judiciary conveniently forget that fraud isn’t just the act of stealing or misappropriating funds; by its very nature, it involves mens rea – the state of the fraudster’s mind. Hence, withdrawing the charges or dismissing and/or terminating the prosecution on account of the fact that the alleged fraudster had paid up the ‘debt’ defeats the whole purpose of criminal law. Criminal law is principally intended to deter, to shame, expose and punish the criminal. After all, chicken thieves have been sent to long incarcerations even death in Kenya (not that I approve of this). However, the arbitrary withdrawals and termination of charges would undermine rather than further the interest of justice).
The Senate has lost direction
Until two weeks ago, the Senate, whose primary function is the representation and protection of the interests of the counties and their governments was in a deep slumber.
For more than ten months, the Senate was either engaged in churlish turf wars with the National Assembly over the passage of bills, or in throwing petulant tantrums at the National Executive over imaginary issues such as their threat of a still-born ‘referendum.’
With the exception of its Supreme Court reference and the debate, determination and allocation of revenue to counties, Senators had most egregiously abandoned their oversight role over State officers.
Reports of cascading grand corruption in government (acknowledged by no lesser persons than the President and the Deputy President); escalating insecurity; the unresolved Westgate ‘terrorist’ attack; the Turkana, Baragoi, Tana River and Coast massacres; the dodgy standard railway project; the on-again-off-again school lap top project; the controversial failed ‘Jubilee Shuttle Diplomacy’ and the recycling of retirees in public jobs have attracted no debate and censure from the Senate.
In fact, until the Senate seized on the Embu Governor Martin Nyaga Wambora’s impeachment, they had largely become an irrelevant noisy chamber of retirees. I’ve tried to follow proceedings before the Senate but found them lacklustre, mediocre, meandering, lacking rigour, and generally without discernable purpose.
Whereas the Senate’s role in our current governance structure is invaluable if exercised properly, based strictly on its 11-months’ record, it has become an expensive, dysfunctional house. Unless or until it changes course, many would agree that it doesn’t deserve its elevated moniker as “an upper chamber.” It might even deserve to be deleted from the Constitution.
The National Assembly is on a power grab mission
The National Assembly has used its gleaming chambers to intimidate and threaten just about everybody in Kenya. They haven’t just become experts at hurling epithets at the Judiciary and the Senate; they have also unilaterally and irregularly increased their salaries and allowances; assumed irregular control over the CDF (and thumbed their noses over the principle of checks and balances); intimidated the Judiciary, the Revenue Allocation Commission, the Judicial Service Commission and the Senate; and has literally been running rogue over all conceivable issues.
Although its constitutional remit requires them to “represent the people of the constituencies and special interests in the National Assembly;” to discuss and resolve issues of concern to the people; to enact legislation; to determine the allocation of national revenue between the levels of government; and to play an oversight role on the use of national resources as well as over State organs; for the most part, MPs have only been strident whenever they have wanted to grab more money or power for themselves.
Last week, MPs went further and slashed the Judiciary and County Governments’ budgets. They did this surreptitiously, without consultation, proper debate or consideration to the negative impact their action would ultimately have on the people. Media reports have quoted a section of MPs claiming that their action was intended to ‘punish the Judiciary and Governors for disrespecting Parliament.’
Two wrongs don’t make a right. Purported ‘punishment’ of institutional rivals isn’t the way to address important public policy and governance issues affecting more than 40 million Kenyans who have no interest and stake in the unravelling institutional rivalries in question.
Precipitous acts based on short-sighted agenda cannot be justified. Kenyans deserve mature, principled and balanced reflections and conduct from their leaders.
The National Executive is a reluctant partner
The National Executive has not helped matters by being openly partisan in matters where a collaborative and consultative approach should be the norm. Its approach to serious governance issues have left many wondering whether it is aware that once elections are over, a constitutional democracy such as ours demand that its National Executive treats all Kenyans, including those sections of the citizenry that didn’t vote for it, without discrimination.
Its allocation of national resources, appointments for significant public offices, attitude and posture are obviously skewed in favour of the Rift Valley and Central Kenya. One only needs to conduct a cursory survey of the most important and powerful ministries (finance, including Treasury; internal security; devolution and national coordination), departments and state corporations in order to establish where the overwhelming balance of power lies.
But the most dangerous posture the National Executive has adopted is that of openly urging on and siding with Parliament in its numerous wars with the Judiciary and the County Governments. My view is that the National Executive must try to stand above the fray. In case of political and administrative institutional disputes, the National Executive should encourage dialogue, offer or initiate alternative dispute resolution mechanisms to deal with the situation
Ignoring court orders, instituting irregular commissions of inquiry and/or signing into law faulty bills should be avoided as much as possible. Governance isn’t about who is more powerful or who believes they are right. It is all about pursuing, protecting and advancing public interests.
Courts are allowing abuse of process and acting unconstitutionally
Even in the highly litigious North America, more than 60 per cent of disputes already in court are resolved out of court. In Canada, compulsory court-annexed mediation procedures are mandatory for virtually all civil matters.
Once a party has initiated legal action, the defendant is given twenty days to file and serve their statement of defence. Almost immediately after that, the parties are compelled to explore settlement through mediation. Parties have the option of choosing their own mediator(s). However, if they cannot agree, the court may appoint a mediator for them.
Within 60 days from the date of commencement, civil cases must be set down for trial and trial held within two years.
These aren’t frivolous requirements; they are entrenched in the Civil Procedure Rules, adhered to by parties, and strictly enforced by the courts. Anyone who fails to comply with the rules and strict deadlines will have his or her case struck out. Thus, out of court settlement is highly encouraged.
Mediation has been integrated into the court system in Canada because it is not as complicated as litigation. It is also relatively cheap. It allows parties to confidentially discuss all aspects of their disputes in plain English without legalese and procedural technicalities.
Unlike litigation where the end result is either a win or a loss for one of the parties; mediation is considered a ‘win-win’ option for parties. At trial, a judge or jury can only assess liability and damages in monetary terms. However, mediation allows the defendant(s) to admit liability and even apologise to the plaintiff(s) without any legal implications. Settlement is often structured by the parties with the assistance of the court-appointed or parties’ selected mediator.
Due to the efficiency and effectiveness of mediation, legal disputes in Canada are resolved fairly quickly. In any event, trials are held within 180 days of the commencement of civil cases.
Such an efficient system saves money and allows parties to avoid the stress, emotional anguish, and inconvenience of litigation.
In Canada, files don’t disappear. Judgments are rarely fixed (although racism and other discriminatory practices still exist.) Ultimately – and generally speaking – the society has greater confidence and faith in their legal system, specifically, and their institutions of governance, generally.
The Constitution of Kenya compels the use of ADR in intergovernmental disputes
The Constitution of Kenya, 2010 borrows heavily and correctly from ADR developments in Canada (mostly Ontario) and other jurisdictions.
Article 189(3) of the Constitution states that, “In any dispute between governments, the governments shall make every reasonable effort to settle the dispute, including by means of procedures provided under the national legislation.”
And article 189(4) provides that, “National legislation shall provide procedures for settling intergovernmental disputes by alternative dispute resolution mechanisms, including negotiation, mediation and arbitration.”
In order to operationalize this constitutional imperative, Parliament appropriately enacted the Intergovernmental Relations Act, 2012 (the Act). This Act establishes a framework for consultation and cooperation between the national and county governments; amongst county governments; and provides a mechanism for resolution of intergovernmental disputes.
Although the Act has deficiencies in terms of its scope and drafting, it certainly attempts to address the intractable and systemic disputes that often arise between and amongst different levels of government, arms of government and other public institutions with a mandate to serve the people.
For instance, section 31 of the Act appropriately states that, “National government and the county governments shall take all reasonable measures to (a) resolve disputes amicably; and (b) apply and exhaust the mechanism for alternative dispute resolution provided under the Act or any other legislation before resorting to judicial procedures as contemplated by Article 189(3) and (4) of the Constitution.”
Article 32 of the Act uses mandatory terms and provides that any agreement between the national and county governments must include an ADR mechanism “that is appropriate to the nature of the agreement.” In both cases, ADR must be attempted first and judicial proceedings must be “the last resort.”
In other words, both the Constitution and the Act frowns upon the recent applications that have been made by governors and other aggrieved parties to the High Court of Kenya in matters that either involve or touch on “the relationship between the national government and the county government.” The dispute between Parliament and the County Governments is analogous to the problem the above cited constitutional provision was intended to cure.
Arguably, the raging dispute between Parliament (Senate and the National Assembly) and the County Governors on the one hand; and between both Parliament and the National Executive, and the Judiciary, on the other, haven’t been handled in accordance with the provisions of the Constitution and the applicable statute.
In my view, interlocutory, injunctive and peremptory orders should never have been issued by the Courts on matters that the Constitution itself states should only be taken to court as a last resort.
The Chief Justice must immediately institute an administrative process of weeding out such cases at the Registry before they are filed.
Conclusion
Devolution is decentralisation. It’s the vertical and horizontal dispersal of power and resources from the centre (Nairobi) to the grassroots (counties) where most people live. It was intended to entrench and promote democratic and accountable exercise of power. It was also meant to foster national unity by recognising diversity and protecting minorities.
A functioning devolutionary system gives real power of self-governance to the people. It recognises the right of the people and their communities to make decisions that affect their lives. It promotes social and economic development. Fundamentally, it ensures equitable sharing of national resources.
My view has always been that 47 counties are too many for a small country like Kenya. Ideally, we should have had only eight counties. That way, the devolved units would be sizeable enough for real economic development. At the same time, they would be politically large and significant enough to act as a check on the national government.
Be that as it may, something urgent and drastic must be done to compel accountability and transparency from the National Executive, Parliament, County Governments and the Judiciary. The pathetic status quo must give way for something refreshingly democratic.
These are the primary issues that should be engaging our National Executive, Parliament, Judiciary and the County Governments. Until or unless we start seeing them shift focus from pedantic matters to these substantive issues, Kenyans should reserve the right to send the occupiers of those offices home.
Mr. Miguna Miguna is a lawyer, an ADR expert and the author of Peeling Back the Mask: A Quest for Justice in Kenya and Kidneys for the King: Deforming the Status Quo in Kenya. Migunagowok@gmail.com
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