Executive, Parliament out to maintain status quo and are disregarding law

By Ndung'u Wainaina

The major institutional and systematic reforms, including governance transformation ushered in by the new Constitution, have been experiencing recorded successes but with equal measure of challenges.

On August 4, 2010, Kenyans made an unequivocal declaration to attain a just, comprehensive and lasting peace within the bounds of the law. They resolved to institutionalise open, transparent, accountable and inclusive governance based on democratic institutions.

The first step in sowing and fomenting lawlessness, violence and anarchy is disregard for the Constitution and other publicly promulgated laws of the land. Kenya transition is nascent and precarious. It has to be protected, supported and strengthened.

Creating and executing political strategy of fear, despondency and despair among people of Kenya is futile. Across the world people are risking their lives in peaceful protests to demand the opportunities, dignity and secure future that every individual citizen deserves.

Since August 27, 2010, the Office of the President has shown more appetite for sidestepping or overlooking the Constitution more than obeying it. It has equally shown little respect for institutions established under the Constitution. The political culture of individual fiat is still more preference than that of rule of law and constitutionalism.

This is a watershed moment for Kenya. Attempts at reverting back or thwarting transformation of the State will shatter the country apart with devastating effect. The Office of the President must cease its derogation of the Constitution and contempt of judicial authority to avert a crisis.

Concerns have been raised on quality of the Legislative Bills flowing from the Constitution and being enacted by Parliament hastily to meet the constitutional deadlines. Further, qualitative public participation and respect of their views in legislative enactment and institutional establishment has also been raised.

There is a strong resistance to the constitutional order by the Executive and Parliament, which are used to impunity protection, finding it difficult to accept new set of standards and expectations of governance and conduct of public affairs.  This is evident by court cases challenging certain appointments and laws already done.

The Constitution ushered a greater demand for equality, justice, citizen participation on deciding public policy and deepened devolved governance. But, Government institutions have not been effective in facilitating honest leadership faithful to these constitutional requirements.

In broad strokes, the past trajectory on the road to collapse of the rule of law can be reduced to the following: The legitimacy of public institutions gradually get destroyed through undue political interference from the Executive; mechanisms met to address deficiencies in institutional independence are systematically compromised; perceived security threats are exploited by Executive to obliterate public institutions ability to operate according to the rule of law.

Individual rights are attacked and expectations that Kenyans will have anything beyond zero status gradually get eroded; and disappearance of truth as a public enterprise alongside a climate of fear leading to little organised public pressure. 

Kenya transition is nascent and precarious. It has to be protected and supported. People of Kenya in their diversity and togetherness have agreed to strengthen their responsibility and ownership of the country’s own security, governance and rule of law, and social and economic development. This must not be frustrated by vestiges of the past residing in the Office of the President.

The Constitution did establish a comprehensive approach based on three key principles namely: ensuring effective governance and accountability; strengthening the rule of law and human security and; protecting larger human rights and freedoms of citizens as the essential roadmap towards lasting peace, political stability and functional democracy in Kenya.

Law and justice reforms do have a positive correlation to human security, equal opportunities and regard for rule of law. These reforms, when carried out correctly, result in benefits contributing to and promoting social development and expand human capability seeking to protect the vulnerable and empower the poor.

Reforms in criminal justice and security institutions are not usually viewed as key needs that directly contribute to improving economic governance. Without reforms in these sectors, the benefits of ongoing judicial reform efforts will remain marginal.

By embarking on a sustained entire criminal justice security sector reforms, we seek to tackle inequalities and discrimination. We address intangibles stemming from powerlessness and despair reflected in human rights denied, opportunities bypassed, entitlements wasted, public services left unrendered, public resources plundered, and the terror of vulnerability inflicted.

Where the formal justice and security systems fail, there will be failing state and failing economy leaving citizens, particularly the poor, vulnerable to the predatory behavior of State functionaries and powerful private interests.

Communities are still very skeptical, hostile and cynical towards the security sector, particularly the police, as many have had awful experiences while dealing with them. Major segments of the populations still perceive the security apparatus as agents of powerful and not as members of an organisation publicly maintained to enforce rule of law. In order to effectively evaluate the progress in justice and security sector reforms, the country needs to adopt a criteria based on performance effectiveness (extent and quality of the police service’s efforts to produce law and order and respond to all levels of crime); management and oversight (police service’s basic management structure for carrying out operations and being accountable to the community); community relations (police service’s relations with the local community in securing the public’s support and trust); and sustainability( ability of the police service to sustain itself and its capabilities without international donor support and guidance).

The writer is Executive Director, International Centre for Policy and Conflict