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Daily Nation : February 27th 2014
DAILY NATION Thursday February 27, 2014 Opinion 13 SEPARATION OF POWERS | Gibson Kamau Kuria The Judiciary has done a good job of upholding our constitutional ideals Senate and the National Assembly that the Judiciary is assisting impunity, corruption, theft, and irresponsibility is both wrong and unfortunate. The truth is that Kenya’s T Judiciary has, since the new Constitution was effected in 2010, observed some of the highest standards by any democracy. The judges have served as true guardians of the Constitution. Were they to heed criticism, they would abandon their oath of office to administer justice without fear or favour. The criticism levelled at the Judiciary is based on several misunderstandings. First, the Constitution, which is an expression of the people’s will, is the supreme law. All the organs established by the Constitution, be they the Presidency, the Senate, or the National Assembly, must accept this fact. Kenyans have allocated each of these organs powers and the Judiciary is mandated to declare the boundaries whenever disputes arise. The people of Kenya have done away with the heresy of the supremacy of Parliament, which caused untold misery between 1963 and 1988, when amendments to the Constitution turned the country into an authoritarian he accusation by President Kenyatta and some members of the cepted that there will always be differences of opinion. Citizens may not like the particular outcome, but the choice of the institution to take the decision has been made. Those criticising the Judiciary are not playing by the rules of democracy. As the Supreme Court has The Supreme Court building in Nairobi. state. Both the Senate and the National Assembly appear to be living under the illusion that Parliament is supreme. The National Assembly is unhappy because the Judiciary has asserted the supremacy of the Constitution by ruling that only the Salaries and Remuneration Commission has the power to determine the pay of public officers, including members of Parliament. No doubt the President was reacting to the ruling of the High Court to stay the special Gazette notice that appointed persons to investigate the conduct of six members of the in the Judicial Service Commission (JSC). In a country governed by the rule of law, there is and there must be a court that declares the law. In a democracy, it is generally ac- explained, the Constitution is a transformative document, the country’s formula for reconstruction. Kenyans made it so to fundamentally shake up the status quo. Those criticising the Judiciary are the beneficiaries of the society that Kenyans resolved to reconstruct. The reconstruction involves a little pain, but what cure is possible without pain? The tensions between the organs of the Constitution are to be expected if the status quo is to change. Governors, senators, members of the National Assembly, and the President, who shares his power with the National Assembly, must come to terms with the new constitutional order. Third, tension between the Judiciary on one hand and the Executive or/and the Legislature on the other is normal, according to democratic practice the world over. Indeed, no democracy has matured without managing such tensions. For instance, in the 1930s, there was great tension between President Franklin Roosevelt and the United States Supreme Court, which the President accused of not supporting the New Deal legislation designed to address the Great Depression. Between 1967 and 1980, there was a great controversy between the Supreme Court of India, the Legislature, and the Executive, which held different views regarding supremacy. The Judiciary took the correct view that it was the Constitution, not the Legislature, that was supreme. Fourth, in a democracy, all individuals and institutions must obey court orders. Courts have said that the simple and only view is that an order of the court must be obeyed and that those who wish to get rid of it must do so through the Court of Appeal or applying for it to be set aside. The Constitution and all the good laws in a democracy will not serve any purpose if court orders are disobeyed. In all democracies, one thing is clear — that whoever disobeys a court order achieves absolutely nothing. In a country where court orders are not obeyed, chaos, not order, reigns. For this nation to be as great as desired by Kenyans, this truism must be allowed to stand. Well done, Kenya’s Judiciary! Dr Kuria is a senior counsel. SELF-GOVERNANCE | Rashid Abdi badly implemented and emptied of content by craven and inept county governments. Whichever view you pick, it is impossible not to conclude that there is a crisis of confidence in the country’s devolution process. Regarded a year ago as one of the boldest political experiments in Kenya’s history, devolution of power away from the centre and directing greater resources to the periphery has become complicated and the prospects do not look good. The sanguine suggest that what we Why Muslims are keen on devolution D epending on who you speak to, Kenya’s devolution is either a disaster foretold or a good policy The prospect of a ‘devolution divide’ emerging, with a few counties closer to the centre powering ahead while the vast majority is crisis-ridden and lagging behind is a real risk are seeing are simply teething problems, nothing more. Many disagree and think there is something fundamentally flawed and that the sooner we review the process and suggest innovative solutions, the better. But there is a reason Kenya’s Muslim community is especially keen to see the current crisis speedily resolved. The failure of devolution would embolden radicalised groups, create the perfect context for instability and violence, and complicate Kenya’s counterterrorism efforts. The demands for majimbo and devolu- tion were largely driven by communities on the periphery, who felt marginalised and disadvantaged under the old centralised system. These are the communities that have a huge stake in the success of devolution. Part of the reason we have not suc- ceeded in counter-radicalisation and counterterrorism is because much of the periphery is poorly governed and impoverished. Many ordinary Muslims in Wajir, Mandera, Garissa, Isiolo, and Mombasa are supportive of devolution and welcome the chances of self-governance created by the county system. However, there is a small minority that has a different and more sinister agenda. I recently watched a short video clip of a jihadi preacher at a mosque in Mombasa giving a sermon to a youthful congregation. Looking smug and with a triumphalist tone in his voice, he said: “Ndivyo nilivyo waambia. Hivi vijiserikali Nairobi City County askaris arrest a pedestrian. THUGS IN UNIFORM. Watching the operations vya ugatuzi haviendi popote. Mli hadaiwa. Ilikuwa ni njama tu.” (This is what I told you. These devolved mini-governments are headed nowhere. You were duped. This was a conspiracy.) Islamist extremists in Coast and north- ern Kenya have no interest in stability and desperately want to see the devolution process fail. And there is a reason: Chaos and state failure are the acid pools that incubate the jihadi narrative and conspiratorial worldview. What jihadi groups dread most is success — the prospect of county governments delivering better services, improving living conditions, and providing jobs to many of the young people currently attracted to the misguided ideas propagated by extremist leaders. There is another risk, which ought to be highlighted as well — the prospect of a “devolution divide” emerging, with a few counties closer to the centre powering ahead, while the vast majority is crisis-ridden and lagging behind. Nothing would be more disastrous than to see the old wealth, income, and services divide getting entrenched by the new system of devolution. The writer is an independent Horn of Africa analyst/consultant. (rasheed_ firstname.lastname@example.org) of members of the City Inspectorate, one would be forgiven for mistaking these for incidents of robbery with violence, charges Gabriel Kilonzo. On 21 January, at 11.30am at the junction of Karen and Marula roads, he reports “some of the thugs in uniform pounced on my driver, who had parked by the roadside to answer a phone call, bundled him onto their breakdown vehicle, and towed the car to Dagoretti. He was then slapped with a Sh8,500 charge. His contact is Tel 0724674707 or email@example.com. MUCH ADO ABOUT NOTHING. The upcoming ODM national elections have been overhyped, remarks Juma Ogai, adding that the real truth is that most ordinary Kenyans do not care much about political parties. “Raila Odinga is ODM, just as Uhuru Kenyatta is TNA, William Ruto, URP, and Kalonzo, WDM. Whether Ababu Namwamba or Agnes Zani becomes the ODM secretary-general is less important than what Raila thinks. Without Raila, Uhuru, Ruto, and Kalonzo their parties will simply disintegrate.” His contact is firstname.lastname@example.org. ROAD CONSTRUCTION RECORD. This could just be a record of sorts as far as road construction is concerned. According to Anne Ngenye, the tarmacking of the 40-kilometre Tawa to Kyambalasi road through Kikima in Mbooni, Makueni County, which started in 2007, has yet to be completed. With only half of the project done so far, she wonders whether it will take a total of 14 years to complete the entire job. Her contact is email@example.com. Have a complete day, won’t you! E-mail: firstname.lastname@example.org or write to Watchman POB 49010, Nairobi 00100 Fax 2213946 THE CUTTING EDGE BY THE WATCHMAN VEHICLE SECURITY. The new generation motor vehicle number plates will be a most welcome relief from the existing eyesores, says Michael Odiyo. However, Michael would like to see more done to enhance the security of vehicles and their owners. A good start, he says, would be to issue different number plates for the various classes, such as saloons, pick-ups, trucks, or vans. “The chips to be embedded should have special codes that uniquely identify the class of vehicle instead of registering vehicles in the counties.” His contact is email@example.com. GHOST WORKERS. Frequent statements by Nairobi Governor Evans Kidero and Planning and Devolution Cabinet Secretary Anne Waiguru about the supposed existence of ghost workers, some people earning more than one salary, and others being paid while in their graves are much ado about nothing really, remarks Agatha Kazungu. “If they are so sure that this is the case, why can’t they take action? Instead, we’re told that some people can raise their salaries for three months before reverting to their old ones.” PARTIAL ARBITRATORS. A proposal by sena- tors to establish county development boards, which they will chair, is one Kennedy Butiko totally disagrees with. Kennedy is particularly concerned about how the senators can, after doing this, remain impartial arbitrators in cases where governors are accused of involvement in corrupt dealings. “They need to keep off the day-to-day running of the counties to retain their oversight mandate,” says Kennedy. His contact is firstname.lastname@example.org.
February 26th 2014
February 28th 2014