By PROF GITILE NAITULI
In a truly democratic society, the authority to govern is derived from the people. This means that those who govern are products of popular mandate and must govern according to the wishes and in the best interest of the governed. In that regard, democracy does not connote mere conduct of elections. It means that people must be involved at every step during the tenure of those elected into office.
In recognition of the above, the 2010 constitution came up with ingenious attempts to place people at the top of decisional food chain in democratic governance of the country. Unfortunately, some of the constitutional mechanisms are yet to be fully appreciated, others have been deliberately eroded through enabling legislation and/or weakened institutions in the process of procedural application.
I will try to look at a few of the attempts. Article 1 of the constitution of Kenya proclaims sovereign authority as belonging to the people of Kenya who can exercise that authority directly or through their elected representatives. The bone of contention here is the word “directly”. How can the masses conduct the business of governance without doing so through statehood institutional infrastructure such as parliament, the courts and the presidency? Can the society hold together?
I think the question of “directly” can be answered by looking at the various tools of accountability in the hands of citizens and whether or not they are adequate to ensure transparency and accountability in management of public affairs.
One of them is impeachment of the president as provided for under Article 145 of the constitution. The constitution provides for a lengthy process beginning from the national assembly and ending in the senate. Both houses are supposed to have passed a resolution supported by a super majority of two thirds of all members. The grounds for impeachment, by their very broad nature are themselves a difficult bone of contention …. Gross violation of a provision of the constitution, crime under national or international law and gross misconduct.
Impeachment of the President under the current constitutional dispensation is a pipe dream for the following reasons.
One, the process is solely in the hands of greedy political elite obsessed with transactional political horse trading as opposed to transformational people-centered leadership. Even if the president is as guilty as Lucifer himself, it is a question of price and an impeachment motion would turn into a vote of confidence.
Secondly, going by the high voltage competitive nature of the presidential seat and the deep rooted vested interests, a presidential impeachment which looks realistic would be akin to a declaration of civil war. The ensuing instability, bitterness and divisions would have long term repercussions to the country. Therefore, for the sake of peace and stability many of the elite would choose to deal, dine and wine in peace regardless of the situation of the ordinary mwananchi. In this regard therefore, the sovereign authority declared by Article 1 is sacrificed at the shrine of elite interest.
REAR ALSO
Impeachment of governors under Article 181 and The County Governments Act is another slap on the face of democratic accountability. The process is supposed to start at the county assembly and eventually to the senate. I’ve argued on previous occasions that it’s wrong, irrational and unconstitutional for the national senate to have inserted itself in governors’ impeachment processes.
So far this has been the most enterprising political business. Impeachment of governors at the county assembly is something like trade unionism. If the deal is not struck at the county level, the transaction proceeds to the senate. It is at this level where governors herd mentality bell rings.
They pool resources in a common basket for the commonwealth of senators as they rescue one of their own from impeachment. We have seen governors who are supposed to be in maximum prison being honoured with standing ovations in the senate. Worse still, most of the influential senators are immediate former governors. It’s a charade. An insult to Article 1.
In the second part, we look at how it is easier for the proverbial camel to enter through the hole of a needle than to recall a Kenyan MP or senator.
The writer is a lecturer at Multimedia University of Kenya and former Commissioner, NCIC
