A major theme of the 2010 Constitution is integrity within the structure of the state.
The principle reason for the eminence given to integrity is that, ever since Independence in 1963, the state and the private sector have been the victims of enormously corrupt acts of our political leaders. The first few heads of the state and their families, particularly Jomo Kenyatta and Daniel Moi, were from the beginning of their office the source of unimaginable theft of the resources of the state and the private sector.
Armed with the police, army and public service, there was no limit to their ability to loot the resources of the public and private sectors. The corruption of heads of state, politicians, and their friends changed the entire structure of our social order.
Nothing has changed the nature of our society so much as corruption. All sections of the state have been implicated in it. Inevitably corruption within the state must expand the virus to the private sector, just as corruption within the private sector has increased illegalities within the state sector. Even while new measures are taken to stop corruption, Kenya is one of the world’s most corruption- driven country, at 143 out of 180. Eight and half year ago, new constitutional measures were meant to be put into operation to eliminate all traces of corruption. But thanks to our politicians, business people, thieves in partnership with private sectors, local and foreign, have increased corruption enormously.
ABOLITION OF CORRUPTION?
The 2010 Constitution was the first to tackle corruption with a number of provisions to promote integrity. The orientation and approach is set out in Chapter Six (“Leadership and Integrity”). It is, I fear, the least read or understood of any chapter, though it is one of the smallest.
The Preamble of the Constitution identifies the aspirations of Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice, the rule of law, and the participation of the people in the affairs of the state. It aims to achieve these objectives by “good governance, integrity, transparency and accountability” (Article 10(2)). National values and principles in the Bill of Rights (Chap. 4) and land and environment are the best indications of constitutional objectives. These and other objectives are entrusted to the State, in Chapter Six.
The scheme of integrity is based on the role of “State officers”, including the President, the Deputy President, MPs and county assemblies, judges and magistratess, the Attorney General, the Chief of Defence Forces, the Inspector General and 17 other categories. It is these officers who, by their leadership, are to promote integrity.
The Constitution sets out at length the “guiding principles of leadership and integrity”, geared towards complete honesty, selection on basis of personal integrity, competence and suitability, avoiding conflict between personal interests and public or official duties, objectivity and impartiality and accountability to the public).
Certainly, by following these and other norms elaborated in Chapter Six by the leaders of the state, corruption would be completely eradicated. Since almost all those who carry out corrupt exercises are in some sense involved with the State officers, effective control over the latter could eliminate corruption.
FAILURE OF LEADERSHIP AND INTEGRITY?
The categories of the types of professions within the government, loosely speaking, appear not to have fulfilled the vision of the Constitution. There is no integrity, fairness, harmony, peace or effectiveness as promised by Chapter Six. There is little harmony among officers and institutions that was to lead society to peace and progress.
On the contrary, the very cause of conflict are the groups we expected to build peace and harmony. Whether the issue is the matter of state policy, integrity or social peace among the leaders identified in the Constitution to keep peace and fairness they are themselves the cause of conflict. Some of the biggest conflicts among them are between people who come from the same category, for example, politicians. Nor have the leaders of other categories of responsibilities, like the Inspector General, lived up to their responsibilities. Nor for a long time did the Director of Public Prosecutions perform his task.
MPs were in many ways the worst, looking after their own good, not that of the country. A large number of bureaucratic types (not so obvious) have been involved in corruption of the worst types, in their collaboration with the private sector. This has greatly harmed the ordinary Kenyan, in a number of ways, including household needs. The President himself has trespassed beyond his own scope of authority, assuming that he can issue the command as he wishes, disregarding the experts he might himself had appointed. And now the judiciary has come under attack for failure to perform its tasks in a fair and professional way.
So what went wrong? One matter could be that we applied Chapter Six unfairly or incompletely. The chosen of the leaders was not necessarily on the basis “of personal integrity, competence and suitability”. Another norm was repeatedly ignored” “objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism, other improper notices or corrupt practices”. Missing most is “selfless service based solely on the public interest”. Most officers seem to have broken another norm: any conflict between personal interests and public or official duties”. And what about the “Financial probity of State officers”?
CHECKS AND BALANCES UNBALANCED
A fundamental feature of the Constitution is the idea that different institutions will operate to control others. No institution is to be beyond control. Parliament is separate from the executive, which needs its support for making law and for finance. Parliament makes law, but the President can reject its laws – ideally with good reason. But the President’s veto is not uncontrolled because Parliament can override it. In extreme circumstances, a President can be removed, but not by one body alone, but by a combination of both Houses of Parliament. The police investigate crime, but the DPP decides whether to prosecute and carries out prosecutions. Neither is supposed to be dictated to by the Executive.
The Senate protects devolution against the excesses of the National Assembly. And the recommendations of the Senate about the distribution of national resources can be overruled, though not easily, by the National Assembly.
Everyone’s behaviour can be challenged in court. But judges are not immune from the legal process, and judges who are in serious breach of the law or constitution can be removed.
Some decisions are taken away from the Executive to an independent commission, but their procedures too can be challenged in court. One of them – the Salaries and Remuneration Commission prevents Parliament from setting its own salaries. The Ethics and Integrity Commission has a special role in watching all the other elements, including the police.
You can see how the Constitution assumed that no-one was to be completely trusted. But you can see also how it assumed that if everyone was being watched – and what was seen could be exposed – the misguided or self-seeking behaviour of every element in the system would be controlled.
It set up a system of guardians – every part of the system was part of both the system of guardians, and was also watched by others. It was aware also of the classic question: “Who guards the guardians?”
But somehow all the guardians seem to fail us. Every element in the checks and balances system seems to be corrupted (though not necessarily every bit of every element). Corruption has become a work that is eating at the heart of our entire system.
So it seems that Chapter Six has somehow turned on its head: Instead of helping Kenyans, Kenyans have become the victims of our “leaders”. There must be a remedy, in the outstanding virtue of the Constitution: Article Number 10: “The national values and principles of governance… bind all State organs, State officer, public officers and all persons whenever any of them applies or interprets this Constitution; enacts or applies or interprets any law; or makes or implements public policy decisions”.
Yash Ghai is grateful to Jill Ghai for her help in preparing this article. This article was first published by the Star Newspaper on 30th March 2019