KatibaNewJanuary-Februasry 2011 The birth of a new Republic

Meeting the deadlines The challenges of filling up constitutional offices

Inside: * Push and pull at the ICC * Judicial independence and accountability * Paying for The Hague * So, what will have to change? ABOUT THE MEDIA DEVELOPMENT ASSOCIATION h e M e d i a discuss development oCreate a resource D e v e l o p m e n t issues and their link to centre for use by TAssociation (MDA) is journalism; journalists; an alumnus of graduates of University of Nairobi's School oCarrying out research oReinforcing the values of of Journalism. It was formed in on issues relevant to peace, democracy and 1994 to provide journalists with journalism; freedom in society a forum for exchanging ideas on through the press; how best to safeguard the oOrganizing tours and o integrity of their profession and excursions in and Upholding the ideals of a to facilitate the training of media outside Kenya to widen free press. journalists' knowledge of practitioners who play an Activities of MDA include: increasingly crucial role in t h e i r o p e r a t i n g environment; pAdvocacy and lobbying; shaping the destiny of the country. oPublishing magazines for pPromoting journalism

journalists, and any exchange programmes; The MDA is dedicated to other publications that helping communicators come are relevant to the pHosting dinner talks; to terms with the issues that promotion of quality affect their profession and to journalism; pLobbying for support of respond to them as a group. journalism training The members believe in their oEncouraging and assist institutions; ability to positively influence the m e m b e r s t o j o i n conduct and thinking of their journalists' associations pInitiating the setting up colleagues. l o c a l l y a n d of a Media Centre which internationally; will host research and The MDA aims at: recreation facilities; oB r i n g i n g t o g e t h e r oC r e a t i n g a f o r u m journalists to entrench through which visiting pW o r k i n g f o r t h e friendship and increase journalists from other development of a news professional cohesion; countries can interact network; Providing a forum with their Kenyan t h r o u g h w h i c h counterparts; pProviding incentives in journalists can discuss terms of awards to the problems they face oHelping to promote outstanding journalists in their world and find journalism in rural areas a n d j o u r n a l i s m ways of solving them; particularly through the students; training of rural-based oOrganising exhibitions correspondents; pI n v i t i n g r e n o w n e d in journalism-related journalists and other a r e a s s u c h a s oAdvancing the training of speakers to Kenya; photography; journalists in specialised areas of communication; pNetworking and liking oOrganising seminars, u p w i t h o t h e r workshops, lectures and journalists' organisations other activities to locally and abroad.

Katiba News Jan/Feb 2011 Jan/Feb 2011

This newsletter is meant to: 1 Give critical analysis of democracy and governance issues in Kenya.

2 Inform and educate readers on the ongoing Constitution Review Process.

KatibaNews is published by Media Development Association (MDA). This publication has been made possible with the kind support of the Konrad Adenauer Stiftung (KAS) in Kenya.

MDA is not-for-profit organisation Contents registered under the Societies Act. 3. Meeting the deadlines Managing Editor The challenges of filling up constitutional Stephen Ndegwa offices

Associate Editors Susan Kasera 7. Push and pull at the ICC Patrick Mwangi Henry Owuor 10. Judicial independence and accountability in Office Assistant Kenya Monica Mugure

Photography 14. Paying for the Hague World Wide Web Seeking justice or abetting impunity?

Art Direction & Design 17. So, what will have to change? Khafre Graphics

KatibaNews is published monthly and is distributed free to all media houses, civil society organisations, and the public. All are welcomed to send their observations on the constitutional review process to be the Editorial Board. Views expressed in this newsletter do not necessarily reflect those of MDA, KAS or partners. Reprinting of materials permitted provided the source is acknowledged.

All Correspondence to: The Editor Katiba News P.O. Box 64254-00620 Tel. 2712309 Nairobi, Kenya Email: [email protected]

Katiba News Jan/Feb 2011 1 Implement the new constitution now!!!

2 Katiba News Jan/Feb 2011 Reforms Meeting the deadlines The challenges of filling up constitutional offices

Promulgation of the new aving voted in be filled up. The commis- Constitution was just the the new It is, therefore, worth- sions established include: first step in a long Constitution while to examine what • journey that will take and the same these posts and commis- The Kenya National months and years. haHving been promulgated sions are, the progress Human Rights & Anything looked sur- in a colorful ceremony at made in filling them, the Equality Commission mountable at the heat of Uhuru Park, attention expected challenges to deal with the the moment. However, and excitement has when making these promotion of Human with real politics the rapidly shifted to its appointments, horse Rights and Gender Kenyan way, we know implementation. trading as a challenge in Equality. the challenges that lie the appointments and •The National Land ahead in ensuring that One aspect of implemen- finally give a preview of Commission charged the document becomes tation is the preparation the controversial nomi- with the responsibil- a reality within the and passage of legislation nation of the Chief ity of managing stipulated time sched- required under the new Justice (CJ), Attorney public land and ules. Our writer gives us order. However, this has General (AG), Director of monitoring land use. the real picture. been overshadowed by Public Prosecution (DPP) •The Ethics & Anti- the dramatic competition and the Controller of the Corruption By Moses Kipsang' for key public appoint- Budget by the President. Commission to take ments introduced by the over the role of the new law. Plum jobs existing Kenya Anti- Whereas many Kenyans Corruption are content with having a Commission. new constitutional •The Independent dispensation, many in Electoral & the academia, legal field Boundaries and civil society are more Commission, which delighted with the fact shall be in charge of that the Constitution has conducting elections, created numerous plum referenda and the jobs. delimitation of electoral units. New commissions have •The Parliamentary been established while Service Commission, some that were in which will contrive to existence earlier have render services and been remodeled. Article facilities for proper 250 of the Constitution functioning of the dictates that commis- Parliament. sions are to be made up •The Judicial Service of at least three and not Commission (JSC), more than nine mem- which has already bers. With at least 11 been put in place, to The would-be Attorney General commissions, there will promote and facili- Prof. Githu Muigai be plenty of positions to

Katiba News Jan/Feb 2011 3 Reforms tate the administra- Key bodies elections, all other new year, but its members tion of justice by the Other key bodies include appointments are were sworn in on January Courts. the National Security pursuant to section 29 of 11, this year. The com- •The Commission on Council to supervise the 6th Schedule missioners include Hon Revenue Allocation, Kenyan Defence Forces, required to be filled up Isaac Lenaola, Hon Riaga which has the task of the National Intelligence within 1 year. Omollo of the Court of recommending the Service, National Police Appeal, Hon Emily basis of equitable Service and the Defence Progress Ominde representing the sharing of revenue. Council charged with the The process of filling the Judiciary, lawyers •The Salaries and supervision of the Kenya aforementioned posi- Ahmednassir Abdulahi Remuneration Defence Forces. Unlike tions began but is often and Florence Mwangi Commission to set up the commissions, the characterised by last representing the Law and regularly review composition of the minute rushes, contro- Society of Kenya, Prof the remuneration & National Security Council versy and relative delays. Christine Mango, Bishop benefits of all State and Defence Council is Indications from the Antony Muheria and Mr officers. restricted to officers who Kenya Law Reform Titus Gatere of the Public •The Public Service assume the required Commission are that the Service Commission. Commission and offices such as the Bills necessary for setting Teachers Service Cabinet Secretary for up some of these On January 18, 2011 Commission shall Defence. Commissions and there was yet another continue with their Independent Offices are belated swearing in of roles of administra- The Constitution also ready and only awaiting commissioners. These tion of the Public establishes Individual the approval of the were members of the Service and employ- Independent Offices Commission for the Commission on Revenue ment of teachers. including the CJ, Deputy Implementation of the Allocation (CRA). Like the •The National Police CJ, AG, DPP, the Secretary Constitution (CIC) before CIC, the CRA was Service Commission to the Cabinet, Controller their introduction to required to have been is mandated to of the Budget, Offices of Parliament. constituted within 90 recruit and exercise the Principal and Cabinet days of the promulgation. disciplinary control Secretaries, the Auditor The first commission to over persons in the General, the Inspector be established was the The CRA is chaired by the National Police General (Commander of CIC. It was to be in place former Central Bank of Service. the Police Force), and within 90 days of the Kenya Governor Micah •The Commission on two Deputy Inspector promulgation (27th Cheserem, assisted by the Implementation Generals for the Kenya November 2010), but the members Ms Fatuma of the Constitution, Police Service and members were only Abdulkadir, Mr Meshack J which is already up Administration Police. sworn in on January 4, Onyango, Prof Wafula and running, has the 2011. The commissioners Masai, Ms Rose Osoro, duty of supervising Lobbying continues to are Lawyer Charles Prof Joseph Kimura, Ms and coordinating the intensity for these posts Nyachae (chairman), Dr Amina Ahmed and Prof implementation of as their due dates Elizabeth Muli (vice Raphael Munavu. the Constitution. approach. The position of chairperson), Prof Peter CJ and the AG are to fall Wanyande, Ibrahim Ali, Other than the three The Central Bank of vacant within six months Elizabeth Mwangi, commissions above, not Kenya, though not a and one year and have Florence Omosa, much progress has been commission is now a naturally become the Catherine Muma, made in establishing the body established under first to gather attention. Kamotho Waiganjo, rest. Worse still, there the Constitution, but its Philemon Mwaisaka and has been no appoint- composition shall be Save for the provisions Kibaya Innana Laibuta. ment of persons to fill an subject to an Act of relating to the executive independent office yet Parliament. which have been sus- The JSC was to be in the CJ is required to have pended until the next place by October 27, last vacated by February 27,

4 Katiba News Jan/Feb 2011 Reforms 2011 and the rest of the qualifications shall have vacancies filled up by the opportunity to be August 27. considered for any suitable appointment. Surprise nomination Behind the scenes However, on January 28, appointments, board- President Kibaki in a room appointments and surprise move nominated horse-trading for posi- Court of Appeal Judge tions should be shunned, Alnashir Visram, Prof as they breed cronyism Githu Muigai, lawyer and stifle independence. Kioko Kilukumi and Mr William Kirwa to the The position of CJ is posts of CJ, AG, DPP and crucial to any govern- Controller of Budget. The ment. He heads the Presidential Press Service Judiciary and is central in indicated that the determining, interpreting appointments were and implementing the made in consultation Constitution. The CJ also with Prime Minister Raila chairs the JSC, which has Odinga. But the Prime the responsibility of Minister expressed appointing judicial surprise and denied that Where do we go from here? Prime Minister Raila (left) officers and judges of the there was full consulta- Odinga and President Mwai Kibaki at crossroads. Supreme Court. The CJ tion. members sought clarifi- shall also be involved in cation from the Speaker The JSC as well as the CIC vetting of judges, and The Presidential team on whether the nomina- held that the nomina- spearheading the together with the Party tions were constitutional, tions were against the renaissance of the of National Unity (PNU) but the Speaker dele- spirit and letter of the Judiciary from a rigid, countered the Prime gated the mandate of Constitution due to lack inept and ineffective Minister's statement by issuing an answer to the of consultation between body to an efficient and averring that even little Parliamentary the principals, the failure ideal dispenser of justice. consultation was suffi- Committees on Legal to adhere to the National cient and concurrence or Affairs and Finance. Values and Principles of The AG shall continue to agreement on the Governance as required be the principle legal nominees was not On the other hand, under Article 10. This adviser of the necessary. The signifi- human rights activists led article requires a com- Government and shall cance of this argument by Centre for Rights petitive recruitment also represent the lies in the fact that both Awareness and the based on the principles national Government in section 24 and 29 of the League of Kenyan of equality, participation court and other tribu- sixth schedule to the Women Voters filed of the people, good nals. He shall, however, Constitution require Petition No 6 of 2011 governance, transpar- have no prosecutorial consultation between the challenging the presiden- ency and accountability. powers. The AG shall be President and Prime tial nominations and in introducing the relevant Minister in accordance an elaborate Competitive recruitment Bills in Parliament for with the National Accord Interlocutory ruling the Both principals should debate and hence the full submitting the appoint- High Court declared that have considered a implementation of the ments to Parliament for any purported processing competitive recruitment, Constitution lies in his approval. of the nominations by which they clearly did hands. any arm of Government not. Such recruitment A flurry of activities would be unconstitu- would ensure that every The importance of these followed these appoint- tional. Kenyan with the relevant two positions dictates ments. In Parliament that the selection

Katiba News Jan/Feb 2011 5 Reforms process must be handled Horse-trading can also be with a lot of care lest we used to obtain political The AG shall continue to be the principle recruit individuals who concessions in return for legal adviser of the Government and shall jeopardise and a free hand in the shall also represent the national scuttle the progress appointments. This type Government in court and other tribunals. made so far. of horse-trading negates national values and He shall, however, have no prosecutorial Horse trading and other principles making powers. challenges nonsense of merit and The process of filing up competitive these new appointments recruitments. It also the principals had been ments to commissions is riddled with many encourages the appoint- considering appointing a and independent offices challenges. Top amongst ment of undeserving CJ from the common- shall take into account these is what is known as cronies and loyalists, who wealth. that the offices taken as horse-trading. This will always have the a whole reflect regional phrase has less to do interests of the godfather Nearly half a century and ethnic diversity of with buying and selling of at heart rather than after Independence the people of Kenya. This horses as it has to do national interests. there is no logical requirement is a tall with negotiations explanation why we order for the two characterised by hard Tough road ahead cannot have a principals as balancing bargaining and shrewd The constant wrangles in Government made up of these interests and at the exchange. the Coalition Kenyans for Kenyans. same time ensuring that Government are also a Foreigners owe alle- merit is not compro- In light of the fact that threat to the speedy giance to their countries mised is a delicate act. there is a Coalition filling up of the newly and are not suitable in Government mandated created positions. The determining and imple- Finally, we cannot ignore to consent over each disagreement over the menting national values or live in denial of the appointment, horse- recent nominations is not that they have not been fact that politics, as the trading becomes inevita- only a perfect example, nurtured in. scholar Harold Lasswell ble. Initial reports before but also a sign of the points out, is all about the controversial nomi- tough road ahead. Some The process of appoint- who gets what, when nations by the President PNU stalwarts are ments shall also involve a and how. Politicians must were that the two already threatening to delicate balancing act in definitely reward those principals were consider- pull out of the coalition terms of the diverse they owe their success ing sharing out the and certainly such a interests. Under the Bill to. appointments in such a move shall jeopardise the of Rights, the youth, way that the PNU arm progress on appoint- marginalised groups, Considering the looming would have a free hand ments. women, persons with General Election, in nominating for disabilities and older politicians must position example the CJ whereas Neo-colonialist attitude is members of society have themselves and the ODM side would be also a challenge to the been accorded the right strategise on how they free to nominate the AG. appointment process. to be considered for can win large ethnic The media has been appointive positions. For blocs. The upcoming awash with reports that instance, article 54 (2) appointments may just directs the State to be the candy to do so. Whereas many Kenyans are content with ensure that at least 5 per having a new constitutional dispensa- cent of all appointments The writer is an tion, many in the academia, legal field go to persons with advocate of the High disabilities. Court in Nairobi. and civil society are more delighted with the fact that the Constitution has created Candy numerous plum jobs. Article 250 (4) in addi- tion, directs that appoint-

6 Katiba News Jan/Feb 2011 The Hague Push and pull at the ICC By Albert Irungu withdraw Kenya from the Tactics Rome Statute. But many The Government on the The appointment of a After a much anticipated legal experts pointed out other hand has been new Chief Justice, moment, on December that this was a task in lobbying support from Attorney General and a 15, 2010, ICC Prosecutor futility, as the withdrawal the African Union and its Director of Public Louis Moreno-Ocampo process is long and member states to have Prosecutions is touted as made a request for tedious and does not the cases deferred to a reform agenda that will summons for the people stop any ongoing trials. give them a chance to create an environment he believed bore the form a local tribunal. for the establishment of greatest responsibility in With this list, Ocampo Vice-President Kalonzo a local tribunal. The the post-election has presented his case to Musyoka has been political class vouching violence of 2007/08. The Hague seeking carrying out shuttle for deferment plan to Kenyans finally knew the summons to arraign the diplomacy to garner have a local tribunal in personalities behind the six suspects in court. But support for the place before March 2011 Ocampo list a list that Ruto, through his deferment. The proposed when ICC will hold its made many a politician lawyers, made an changes in the Judiciary pre-trial hearings. have sleepless nights. application to the Pre- this month have been The suspects, three Trial Chamber II seeking used as justification for The agenda of pulling out cabinet ministers to restrain Ocampo from the deferment case. of the ICC has been one William Ruto summoning him. of the many tactics used (suspended), Uhuru by politicians who Kenya and Henry Kosgey support two of the (stepped aside), the suspects who are cabinet secretary Francis presidential aspirants. To Muthaura, and a local many, these attempts to radio station journalist, withdraw from the Rome Joshua Sang, are set to Statute have been met appear for trial at ICC to with cynicism. Promises answer to crimes against by the political class to humanity. The drama create a local tribunal continues… instead of allowing The Hague's due process In 2008, Parliament have been seen as rejected a Special impunity. Tribunal Bill by Mr Gitobu Imanyara that would In 2008, the Local have established a local Tribunal Bill known as the tribunal to deal with all Imanyara Bill was post-election violence rejected in Parliament. cases. It is after this that From Kenya's political Ocampo initiated history, it is evident that investigation, as it was the only reason clear there was no politicians now wish for a political will to try the deferment is to perpetrators. circumvent any Last December after responsibilities for their Ocampo unveiled his list, actions. Parliament hastily passed a Bill by Chepalungu MP His hands are full. ICC Prosecutor Luis Moreno Ocampo has his work cut out for him. Isaac Ruto seeking to

Katiba News Jan/Feb 2011 7 The Hague Withdrawing from the withdraw from this prejudice in any way the election violence faster Rome Statute Statute. The withdrawal continued consideration than the ICC. Trials at The As it is now evident, shall take effect one year of any matter which was Hague can take years to withdrawing Kenya from after the date of receipt already under be determined. Many the Rome Statute will be of the notification, unless consideration by the Kenyans would wish swift an uphill task that may the notification specifies Court prior to the date on justice to deter repetition not bring the desired a later date. which the withdrawal of such crimes in the effect. Article 2 (6) of the became effective. future, especially now new Constitution makes Comply that the country is less the Rome Statute a part The second part of Justification for than two years away of Kenya's law and Article 127 indicates that withdrawing from the from a general election. amending this even after a successful Statute constitutional provision application to withdraw What are the good and Unless otherwise, there to create an exception from being a signatory to bad sides of such a will be no likelihood of would require a the Rome Statute, this withdrawal? Although Ocampo foregoing the referendum, as provided will not affect any not many Kenyans and trials of the six suspects for by article 255 and 256 ongoing trials or other other interested parties even after the of the Constitution. obligations and has a are comfortable with establishment of a local duty to comply to these this, withdrawing from tribunal. the Rome Statute, passing of a local tribunal The negative side to The proposed changes in the Judiciary Bill and immediate trying all suspects in a implementation of local tribunal is: Why this month have been used as judicial reforms would now? Before the naming justification for the deferment case. provide Kenya with an of the suspects, opportunity to prove its politicians were capability to handle its advocating for The Hague problems and retain its as a better option to the Locally, regionally and obligations until such a sovereignty. local tribunal. internationally, this move time that the court has received disapproval deems fit to release it. One of the arguments Now that the ICC is from human rights A State shall not be against the ICC is the becoming a reality, there organisations. discharged, by reason of country is not at war or has been change in tune. Proponents for the its withdrawal, from the civil strife and, indeed, it Experiences from the creation of a local obligations arising from is one of the states to past have proved to tribunal argued that the this Statute while it was a ever have its members Kenyans that anything proposed reforms in the Party to the Statute, indicted for crimes local is prone to Judiciary and the new including any financial against humanity in manipulation to protect Constitution provide obligations which may times of peace. individuals. The local Kenya with an have accrued. Its tribunal may not be opportunity and withdrawal shall not Change in tune different from such capability to hear and affect any cooperation Having a local tribunal occurrences. determine all post- with the Court in has the possibility to Already the process to election violence cases. connection with criminal bring to justice the hire qualified Kenyans to investigation and perpetrators of the the highest legal offices The Rome Statute in proceedings in relation to Article 127 says the which the withdrawing following on withdrawal: State had a duty to The agenda of pulling out of the ICC has A State Party may, by cooperate and which been one of the many tactics used by written notification were commenced prior to politicians who support two of the addressed to the the date on which the suspects who are presidential aspirants. Secretary-General of the withdrawal became United Nations, effective, nor shall it

8 Katiba News Jan/Feb 2011 The Hague in Kenya for the positions and factors relating to of Chief Justice, Attorney the crimes and to General and Director of prosecute related Public Prosecution a offences arising from process vital in the and connected with credibility and the crimes. justification of creating a With this tribunal, it local tribunal has hit a will be possible to deadlock. bring to justice past human rights The President and the violations in Kenya. Prime Minister are in a tussle over whether The jurisdiction of there were enough prosecution for the consultations before the tribunal will be to current nominations to investigate, prosecute these positions were and determine cases made. against persons as In the face of such recommended by the hurdles, confidence in Commission on Post- the local tribunal to bring Election Violence of justice for the many 2007, unlike the ICC Kenyans still scarred by that is going after the election violence is only six suspects. The nil. President in consultation with the The Local Tribunal Prime Minister and Was he acting on behalf of the State? Amb. An analysis of the The Panel of Eminent Francis Muthaura. Imanyara Bill shows that African Personalities Going the ICC way will However, the ICC has the the Rome Statute was nominate appointees to deny Kenya a chance at potential to mitigate any instrumental in creating the chambers. building confidence in its future violence, as few if it albeit adding the local Judiciary. However, given none of the politicians aspect. It has options for Flawed institutions the popularity of the ICC will want to be both a trial chamber and In itself, the Imanyara Bill and its prosecutor with connected in any an appeals chamber. is sufficient to handle all the people, the political violence or tribal The mandate of the post-election violence landscape is set to skirmishes. By tribunal is twofold. It trials. However, the push change, and in a big way. undermining the shall investigate, for it now is being used The era of impunity may widespread belief among prosecute and determine as a strategic tool by very well end. Kenyans that their cases against persons politicians to convince By threatening potential leaders are untouchable, bearing responsibility for the ICC and the perpetrators of crimes the ICC's involvement genocide, gross violations international community, against humanity with could be the catalyst for of human rights, crimes keenly following the tangible punishment, the a gradual process of against humanity and process, that there is ICC can become a institutional reform. other crimes which political goodwill to powerful deterrent for occurred in relation to prosecute. The conflict in Kenya and the the General Election held unwillingness of Kenyan wider region. It would be on December 27, 2007. politicians to take false to state that the ICC responsibility means that will guarantee peace in Secondly, itshall have the the local tribunal, even Kenya and change its power to investigate though the better option, flawed institutions. prior and subsequent will never resolve the events, circumstances country's problems.

Katiba News Jan/Feb 2011 9 Judiciary Judicial independence and accountability in Kenya Which way the new Judicial Service Commission? By Jane Kwengu executive and testing the of power that often process of selecting, consistency of laws choked the courts judicial appointing and removing ther than the passed by the legislature power to the detriment judges. In Kenya, this classic role of vis-à-vis the spirit and of the citizens. process has often been Oresolving letter of the Constitution. politicised and belea- disputes between One of the major guered with allegations parties, the Judiciary also Prior to the promulgation challenges to securing of favouritism, nepotism plays an important role in of the new Constitution, judicial independence and cronyism, which governance by checking the executive enjoyed and accountability world- inevitably have impacted the excesses of the enormous concentration over has been the negatively on the ability of the judicial officers to dispense justice fairly and impartially.

Ideally, judicial appoint- ments need to mirror the principles of independ- ence, integrity, legal certainty of conditions of service and security of tenure, mechanisms of discipline, suspension or removal of judicial officers subject to established standards of judicial conduct and with the right of independent review, impartiality, propriety, equality, competence and dili- gence.

National Accord The Judiciary in Kenya has over the years been perceived as corrupt, inefficient and incompe- tent. This perception led to widespread public mistrust and lack of confidence in the institution whose full impact was felt after the 2007 disputed elections. Under Agenda 4 of the National Accord, judicial Staring at a lost opportunity. Court of Appeal Judge Justice Alnasir Vishram. reform was identified as

10 Katiba News Jan/Feb 2011 Judiciary one of the priority areas challenges that have Commission, all of whom the President's involve- if the country was to bedevilled the Judiciary were the President's sole ment. The President only move forward. for decades. Chapter ten appointees. In a nutshell, appoints the public of the Constitution the President determined representatives, but this Many commentators expressly provides the the composition and how must be approved by have argued that a clear, following: the Judiciary functioned. Parliament. Gender predictable and transpar- balance is also consid- ent appointment crite- •Vesting judicial Composition ered under the new rion that is free from power exclusively in Section 171 of the order unlike in the past political interference is the Judiciary. Constitution establishes where all members were the best antidote to •Bolstering the powers an expanded JSC consist- male. redeeming this important and securing the institution. When Narc independence and took over power in 2002, autonomy of the Prior to the promulgation of the new it tried to clean up the Judicial Service Constitution, the executive enjoyed Judiciary by removing Commission. some judges and magis- •Outlining compre- enormous concentration of power that trates on allegations of hensive provisions on often choked the courts judicial power to corruption and incompe- the appointment and the detriment of the citizens. tence. removal of judges. •Enhanced security of Nevertheless, this did not tenure. ing of the Chief Justice as result into the much •Enhanced budgetary the chairperson; one Independence desired sustainable and and administrative Supreme Court judge; JSC, like all other consti- progressive judicial autonomy and the one Court of Appeal tutional bodies, is reforms that would creation of a judge; one High Court independent and subject effectively insulate the Judiciary Fund. judge and one magis- only to the Constitution Judiciary from political trate; the Attorney- and the law. Parliament is General; two advocates; interference, patronage, Courts are only as good obligated to allocate one person nominated by inefficiency and incompe- as those who create and adequate funds to the the Public Service tence. The promulgation occupy them, hence the commission to enable it Commission; and one of a new Constitution has importance of an perform its functions as woman and one man been seen as a grand independent, strong and per its annual budget. who are not lawyers to Individual members are represent the public. The also not liable for One of the major challenges to securing Chief Registrar of the anything done in good judicial independence and accountabil- Judiciary shall serve as faith in the performance ity world-over has been the process of the Secretary to the of their function of office. Commission. selecting, appointing and removing However, to ensure judges. At a glance, the new accountability, the commission represents commission is required the various interests of to submit a report to the opportunity towards effective Judicial Service the Kenyan society. Their President and to achieving real and Commission. Over the selection also represents Parliament as soon as sustainable reforms in years, the JSC in Kenya a departure from the practicable at the end of the Judiciary. has been perceived as past with all the key each financial year or at weak and ineffective. The stakeholders namely the any time. The President, It is hoped that full old JSC comprised of the judges, magistrates, the National Assembly or implementation of the Chief Justice, two judges, lawyers and the Public the Senate may also new constitutional order the Attorney General and Service Commission require the commission will help in addressing the Chairman of the being let free to elect and to submit a report on a some of the inherent Public Service nominate their represen- particular issue. Every tatives directly without

Katiba News Jan/Feb 2011 11 Judiciary report required from the the integrity of the ciary; prepare and commission shall be commission, any person Mandate implement programmes published and publicised. can petition the National The new commission has for the continuing Assembly to have a been mandated under education and training of Tenure of the particular commissioner section 172 to promote judges and judicial Commissioners removed provided that and facilitate the inde- officers; and advise the Members of the commis- such a person proves pendence and account- national Government on sion apart from the Chief his/her case. ability of the Judiciary as improving the efficiency Justice and the Attorney- well as promote and of the administration of General shall hold office After consideration and if facilitate the efficient, justice. for a term of five years, satisfied, the National effective and transparent but are eligible for Assembly shall send the administration of justice. Appointment of judges nomination for another petition to the President In so doing, the commis- Under the Constitution, term of five years, who may suspend the sion shall recommend to the President shall meaning a commissioner member pending the the President persons for appoint the Chief Justice, can only serve for a outcome of the com- appointment as judges; the Deputy Chief Justice maximum of ten years. plaint, and shall appoint review and make recom- and all other judges in Under section 251, a tribunal to assess the mendations on the accordance with the members of the commis- facts in respect of the conditions of service of recommendation of the sion may be removed particular ground for judges and other judicial JSC, and subject to the from office only for removal. The tribunal officers other than judges approval of the serious violation of the shall make binding remuneration; appoint, Parliament. In the past, Constitution or any other recommendations to the receive complaints the President solely law, gross misconduct, President, who must act against, investigate and appointed the Chief physical or mental in accordance with those remove from office or Justice and was under no incapacity to perform the recommendations within otherwise discipline obligation to consult functions of office, 30 days. registrars, magistrates, anyone on the matter. incompetence, or other judicial officers and Other judges were to be bankruptcy. To safeguard other staff of the judi- appointed by the

The new look Milimani Law Courts in Nairobi. Can our justice system be as strong as this structure?

12 Katiba News Jan/Feb 2011 Judiciary President upon the 24(2) of the sixth sched- appointment of the next recommendation of the Previously, when remov- ule, which allows the CJ, which could lead to a JSC, but many critics ing a judge, the President President to appoint the false start. Further, the doubt that this was the acted on the advice of next CJ after consultation lack of clarity in the practice. the Chief Justice only. In with the Prime Minister Constitution on how the the case of the Chief and subject to the selection process of the To address the challenges Justice's removal, there approval of the National nominees will be arrived of unclear and vague were no clear provisions Assembly. at by the President or the appointment criteria, as on how he could be JSC is also of great well as the inherent removed and who could Ideally, the commission concern. gender imbalance, the make representation to should have been commission is required the President that the allowed to advertise for JSC must allow objectiv- to adhere to the princi- question of removing the the position, conduct ity and fairness to prevail ples of competitiveness Chief Justice had arisen. interviews and shortlist during the vetting and transparent pro- three names for the process to ensure that cesses of appointment of Progress and immediate President’s consideration competent and credible judicial officers and other tasks in accordance with article judicial officers serving in judicial staff and to So far, eight commission- 166 of the Constitution, the current Judiciary are promote gender equality ers have been appointed which would have retained while those of in the course of its work. namely Justice Riaga ushered in a new questionable credibility Omolo representing the beginning towards total are shown the door to Removal of judges Court of Appeal; Justice independence of the pave way for a new breed Under the Constitution, a Isaac Lenaola represent- Judiciary that is free from that will serve the judge of a superior court ing High Court and Ms enormous influence and interests of Kenyans with may be removed from Emily Ominde represent- interference from the professional independ- office only on the ing the magistrates; Mr executive. ence and impartiality. grounds of inability to Ahmednasir Abdullahi perform the functions of and Ms Florence The new commission is Whereas the new office arising from Mwangangi representing required to vet the Constitution does not mental or physical the Law Society of Kenya; current judicial officers to address all the challenges incapacity, a breach of a Prof Christine Mango and determine their suitabil- facing the Kenyan code of conduct pre- Bishop Anthony Muheria ity to continue holding Judiciary, it provides a scribed for judges of the representing the public; office in accordance with good starting point in superior courts by an Act and Mr Titus Gateere the values and principles resolving some of the of Parliament, bank- representing the Public set out in the new inherent challenges. ruptcy, incompetence, or Service Commission. Constitution. The Subsequent legislations, gross misconduct or commission is also policies, political goodwill misbehaviour. In accordance with the expected to play a crucial and the vigilance of the sixth schedule of the role in the establishment citizenry will be equally The removal process can Constitution, the new of a Supreme Court, important if the desired only be initiated by the commission is deemed which must be estab- Judiciary is to be realised. JSC either acting on its properly constituted lished and judges More importantly, the own motion or on the despite the fact that appointed to it not later onus is on the Judiciary petition of any person to there are other vacan- than July this year. itself and the entire legal the commission. Thus, cies. As per the fraternity to fight for its only the JSC can recom- Constitution, a new Chief Concern protection and promo- mend to the President to Justice must be A few challenges lie tion of independence form a tribunal to appointed not later than ahead of the new and accountability. investigate any judge February 27, 2011. commission as it embarks including the Chief Although desirable, it is on the journey of Justice when a question highly unlikely that the reviving the fortunes of of their removal arises. new JSC will play a role in the Kenyan Judiciary. the appointment of the Already, politics has next CJ in view of section taken centre stage in the

Katiba News Jan/Feb 2011 13 ICC Paying for The Hague Seeking justice or abetting impunity? By Dorothy Momanyi by a significant margin occurred on December 30, Profiles during tallying of votes, but 2007 when a church in The most prominent of the Our correspondent later closed in on Raila and Kiambaa area of Eldoret suspects is William Samoei retraces the steps of the eventually overtook him was set ablaze with more arap Ruto, a former youth 2007 post-election leading to claims of than 100 women and winger for the then ruling nightmare in Kenya and manipulation of results. children locked inside. party Kanu, but now a top examines the culpability of politician and an those who have now been Anti-riot police stormed Well executed undisputed political leader told to answer for the the tallying centre at KICC, Violence raged for weeks of the Kalenjin community. mayhem at the flushed out ODM leaders and deadly retaliation by He was a powerful International Criminal and within minutes Kibaki PNU supporters in areas campaigner for the Orange Court. She poses the was declared winner and such as Naivasha, Eldoret Democratic Movement question whether some of hurriedly sworn in at dusk. and Nakuru took place. The (ODM) party in the 2007 these people, by virtue of Within moments, violent Police gunned down and is presently the MP for acting in their official protests erupted in ODM hundreds of ODM Eldoret North constituency. capacities, should be strongholds of Eldoret, protestors. Until his recent suspension shielded by the State in Nairobi, Kisumu, Busia, from the cabinet over one way or the other. Kericho, Kakamega, Migori, The Kenya National Human corruption allegations, he Mumias, Homa Bay, Rights Commission was the Minister for Higher Nakuru and Mombasa. (KNHRC), the Waki Education in the Coalition he period Commission and the Government. preceding the Perceived Party of National International Criminal 2007 General Unity (PNU) members, Court (ICC) prosecutor all Uhuru Kenyatta is a son of TElection and the Election especially Kikuyus, were concluded that the the first President of Day itself, though peaceful, ejected out of their homes, violence was large scale, Kenya, Jomo Kenyatta, and was tension packed. Mwai killed or raped. The most well executed, planned, is immensely wealthy. He is Kibaki initially trailed Raila horrific of these incidents coordinated and funded. currently a Deputy Prime Minister, Finance Minister On December 15, 2010, and MP for Gatundu South the ICC prosecutor applied Constituency. He came to Court for issuance of second after Kibaki in the summonses against six 2002 elections and became Kenyans for massive crimes the Leader of the Official committed during the post- Opposition. He supported election violence. This Kibaki in 2007 and is article seeks to explain presently the top most who these suspects are, Kikuyu leader after the the accusations against President. them, the capacity in which they are charged, Henry Kosgey is a veteran the expected defence of politician having joined each and whether State Parliament in 1979. He is funding of the suspects currently the chairman of defences is tantamount to ODM and MP for Tinderet abetting impunity or constituency. He resigned whether the suspects have recently as Trade Minister other options of covering over corruption allegations their legal fees. and has featured Vice President Kalonzo Musyoka in a public podium. prominently in mega Can he claim to be the only untainted leader scandals including the in Kenya today? disappearance of funds

14 Katiba News Jan/Feb 2011 ICC during the 4th All African Husema broadcasting from language disseminated none held public office games in 1987. He has 2003-2005 before joining through his radio during the violence or its been the Prime Minister's KASS FM. He hails from programme. planning. point man amongst the Cherengany and had even Kalenjin. expressed an interest to vie To counter the attacks and Expected defences for its parliamentary seat, officials close to the It is difficult to predict the Military career but bowed out in favour of President particularly defences to be assumed by Major General (Rtd) Ali Joshua Kutuny. His morning Ambassador Muthaura, the suspects since their Hussein, who was once a show dubbed “Lene Met” Uhuru and Major-General strategies are not in the military commander before meaning what is the world Ali hatched a plan to attack public domain and neither heading the Police Force saying, earned him a slot perceived ODM supporters have summonses, if any, from 2004 as Police on the ICC list of suspects. with the ultimate aim of been issued by the Pre- Commissioner, had an ensuring that PNU Trial Chamber. illustrious military career The accusations remained in power. and chaired the Ulinzi Stars According to the pre-trial However, Ruto has been in Football club. It was during application, the prosecutor Under the authority of the the limelight over the his tenure as the indicates that as early as National Security Advisory allegations and had even Commissioner of Police December 2006, Ruto and Committee chaired by Amb lodged an application with that post-election violence Kosgey had hatched a Muthaura and for which Ali the ICC seeking to restrain occurred and the police criminal plan to attack PNU was a member, Kenya the Prosecutor from force accused of supporters. Sang was to Police and Administration naming him as a suspect. indiscriminate killings. use his radio programme to Police officers were Based on that application, Presently, he is serving as collect supporters and deployed into ODM one can discern that Ruto the Post Master General. provide them with coded strongholds like Kisumu will challenge the signals on when and where and Kibera and directed to credibility of witnesses The fifth suspect is the to attack. kill civilian protestors. who he claims were Head of the Civil Service coached by KNHRC to give and Secretary to the It is further alleged that Retaliatory attacks false evidence against him. Cabinet, Ambassador Ruto, Kosgey and Sang, It is also said that these He faults the prosecutor Francis Kirimi Muthaura. with the aim of gaining three supported retaliatory for failing to lend him an He was occupying the power in the Rift Valley and attacks against ODM ear. same docket during post- punishing their opponents, supporters. Uhuru is election violence. He has coordinated a series of suspected as being the Ruto may also claim an been a career diplomat and actors, institutions and focal point between the alibi to the effect that he is perhaps President established a network for dreaded Mungiki sect and was in Nairobi and far away Kibaki's closest ally. He committing the heinous Muthaura. from the epicenter of hails from the Meru crimes. violence for him to have community and was After meetings, it is alleged been able to coordinate or appointed as the Head of Upon announcement of that Muthaura asked Ali to organise attacks. He may the Civil Service during the the 2007 presidential direct his subordinates not also claim that the first term of Kibaki's election results, thousands to interfere with the prosecution is launched in presidency. of the network members in Mungiki and pro-PNU bad faith for political a uniform fashion executed youth movements planning reasons. The final suspect is neither the plan in Turbo town, the retaliatory attacks a politician nor a Eldoret, Kapsabet, Nandi against ODM supporters in Exonerating evidence Government official. Hills and the Kiambaa Nakuru and Naivasha. For Uhuru, he had filed Joshua arap Sang is the church. High Court Miscellaneous head of operations at KASS Consequently, more than case no 86 of 2009 in FM, a radio station The fashion was to gather 1,000 people died, about Nairobi praying for orders broadcasting in the at designated meeting 3,500 were injured and that his name be expunged Kalenjin language. He points outside targeted approximately 600,000 from the KNHRC Report attended Kenya Institute of locations, obtain briefing were displaced. While Ali entitled “On the Brink of Mass Communication and from the coordinators, and Muthaura are to be the Precipice: A human honed his journalism skills divide into groups and charged for the role they Rights Account of Kenya's in Eldoret first by working subsequently perform the played in their official Post-2007 Election for Christian Radio and assigned tasks, including capacities as State actors, Violence”. Television Network -Sauti attacking the targets. Sang the other four are charged ya Rehema (Sayare TV) - for is alleged to have in their individual and The court agreed that he five years. coordinated these private capacities, since had not been accorded an He then moved to Bibilia activities using coded

Katiba News Jan/Feb 2011 15 ICC opportunity to give his Further, one of the findings Muthaura and Ali acted defence though it still of the Waki Commission Leading the opponents is within their powers. If not, declined to expunge his was that the behaviour of Mutula Kilonzo, the they ought to carry their name. He may fault the ICC some Police officers was Minister of Justice and own cross, but otherwise prosecutor for failing to influenced by factors Constitutional Affairs, who the Government should consider exonerating outside the formal argues that the two foot their costs. As for the evidence. Further, he may operational arrangements, suspects have been sued in rest of the suspects, they claim the alleged meetings chain of command and was their individual capacities did not act at the behest of he held were for assisting in direct conflict with and can, therefore, not the Government. No the internally displaced mandated duties. expect representation at request for State funding of people rather than for Consequently, Ali can rely the taxpayers expense. He their defences should be organising retaliatory on this finding to claim that further adds that if any has entertained. attacks. he cannot be held no money to retain a accountable for the action lawyer, then they are free Acquitted Kosgey is also expected to of such wayward officers. to apply to The Hague for In any event, Article 85(3) make a denial and require legal aid. of the Rome Statute states the prosecutor to prove As for Muthaura, he will that in exceptional the case against him like the rest of the suspects Liable for indiscretions circumstances, the court beyond the required challenge the lack of Each of these divergent can award compensation if reasonable doubt. Like the exonerating evidence, deny positions carries a lot of there was a grave and rest of the suspects, he is having given the alleged weight. On one hand, manifest miscarriage of also likely to claim that the instructions and demand public officers justice in charging the investigation was shoddy that the prosecutor proves notwithstanding the fact person who is then and the prosecutor did not his case beyond reasonable that they are carrying out acquitted. Suspects can, establish exonerating doubt. He may also claim official functions should therefore, recoup costs if circumstances. that the instructions he not abuse or exceed their they are acquitted. gave were for the power in a way that For Sang, he has publicly protection of innocent borders on criminal acts. Finally, it is worth noting declared his innocence and civilians from marauding that under Article 67 (1) (d) claimed that when the gangs. Hitler's men were not of the Rome Statute, an violence broke out, he used exonerated from their accused person is entitled his radio programme to ask State funding crimes on the ground that to have legal assistance people to maintain calm Recently, calls have they were following official assigned by the court in and peace. He also alleged intensified for the State to policy and Muthaura and any case where the interest that even though he met finance the legal fees of all Ali, if at all they committed of justice so require and the prosecutor, he was not the six suspects. The the alleged offences, must the accused lacks sufficient asked to give his side of the Government spokesman, have acted in excess of means to pay. story. Dr Alfred Mutua, has since their powers and hence refuted claims that all the should be liable personally The suspects, including Ali Troublemakers suspects are to be covered, for their indiscretions. and Muthaura should, Ali is the only one who but has confirmed that the therefore, not be so seems to have owned up to Attorney General, pursuant The public, which is in this worried since if they fail to his actions and to a cabinet decision wrote case the victim of their obtain legal representation endeavoured to justify to the Treasury requesting action, should not be from the Government, the them. He has alleged that funds for the legal defence dragged to foot their bill; court can award them if he was damned if he acted of Muthaura and Ali. otherwise it will amount to they show they are and damned if he did not. double jeopardy. In incapable of funding their To him, police officers had This request has sharply addition, footing their bill defence. a statutory duty to protect divided the Government. when we had submitted to the lives and properties of On one hand are those the jurisdiction of the ICC is But we should wait for the the citizens from looters, who support the request tantamount to an Pre-trial Chamber to gangs, demonstrators and and argue that under the admission of guilt by the render its decision on the arsonists and if they killed public service code of Government over the prosecutor's application for to fulfill the duty then they regulations, any officer violence. summons before we can were not on the wrong. He who in good faith acts in speculate on the options may claim that the the execution of his official The important for the accused persons. troublemakers, being duties for the public consideration is for the armed, had to be interest ought to be Government to establish countered using equal defended with funds from formally either by a task force. the public coffers. force or otherwise whether

16 Katiba News Jan/Feb 2011 Devolution So, what will have to change? Decentralisation of the country's The benefits of dispensing power services, the equitable sharing of governance is one of the main to different levels through national resources, the pillars of the new Constitution. devolution is that good decentralisation of State organs Citizens will now have a greater governance is promoted, there is from the capital and the voice in the way they are enhancement of separation of enhancement of checks and governed at their local level and powers, bureaucratic effectiveness balances. determine how resources at their is reinforced, people's disposal should be invested. We participation in the governance Illegal analyse how this system will work process is captured and Under this Constitution, the and its points of departure from transparency and accountability of established unit of devolution is the previous one. government power is achieved. the county and in this respect, 47 counties have been established By Thuita Guandaru The new Constitution has at with each having its own system of Chapter 11 incorporated an aspect elected government. The decision evolution can generally of devolution in the structure of to have 47 counties was be termed as the government. The Chapter first (Art. deliberately made to reflect the process where a 174) begins with an outline of the legally existing districts as at the previously unitary State objects of the devolution, time of the passage. It is worth trDansfers power to other including the promotion of noting that the High Court sitting controlling units at a sub national democratic power, the fostering of in Nakuru declared the districts level such as a regional, local, or national unity, the granting of created by former President Moi state level. Devolution differs from powers of self-governance to the and President Kibaki as illegal. federalism in that powers devolved people, the recognition of rights of may be temporary and ultimately communities to manage their own A County Government as reside in the central government affairs, the protection and constituted can best be explained essentially meaning that the state promotion of the rights of by its appearance as a smaller remains de jure unitary. marginalised communities, the version of the National provision of easily accessible Government with a directly

Memories of days gone by - former President Daniel Arap Moi addressing the public in a recent function.

Katiba News Jan/Feb 2011 17 Devolution elected county assembly (Art. 177). over agriculture, county health responsibility of proposing the It has one member for each ward, services, control of pollution and manner and amount that will make special seats for women, person advertising, cultural and the sharing equitable. An with disabilities and the youth. entertainment activities, county interesting invention is the road and transport, animal control requirement that there is going to Each county will have a chief and welfare, county planning and be in place an equalisation fund for executive known as the governor development, pre-primary and 20 years, which shall be used by and he or she will be directly polytechnic education, natural the National Government to fund elected by the voters of the county. resources and environmental the basic services in marginalised After being elected, the governor is conservation, county public works areas. At the national level, the to appoint an executive committee and services, Police and fire interest of the counties shall be similar to the present cabinet from services, control of drugs and protected by the senate. among people who are not control of pornography. members of the County Assembly. The old vs the new The counties will have the power The previous Constitution was Just like the national president, a to levy property rates, remarkably different from the county governor will only be able entertainment taxes and any other present one in that it absolutely to serve for two terms of five years tax authorised by an Act of said nothing about devolved each. The relationship between the Parliament. The revenue collected government since it only envisaged County Government and the by the National Government is a National Government. It, National Government is that they required to be shared equitably however, permitted a system of are supposed to be distinct but between the national and county Local Government, which has all interdependent. governments. However, there is a along been administered under the constitutional guarantee that at Local Government Act. But a local Constitutional guarantee least 15 per cent of the revenue government is different from a The National Government is collected by the National devolved government in that it is supposed to administer laws and Government is to be allocated to more of decentralisation of power policies concerning national issues the County Governments. than devolution. while the jurisdiction of the County Government is restricted to making The Commission on Revenue In this respect, the national laws and administering policies Allocation is tasked with the government gave the responsibility

Old System New System 1. There is no mention of any other County governments are established as a way of government other than the national devolved government. government. 2. All the laws on local government were County governments are anchored in the under the Local Government Act Constitution. 3. The minister in charge of Local Government Nominated members to the County shall be had power to nominate councilors and to nominated by political parties in proportion to the appoint council chairmen. number of their seats and the minister or cabinet secretary shall have no power of nomination 4. Resources of the local authorities were Resources to the counties are guaranteed in the uncertain. Constitution. 5. There was no representation in the The senate shall be composed of members of the National Assembly for members of local County government to represent and protect the authorities. interest of counties. 6. Local authorities could only make by laws. County governments have powers to make laws - and not just by laws. 7. There was no mention of gender. It is required that not more than two-thirds of the members be of the same gender. 8. Boundaries of local authorities could be Boundaries of a County can be altered only after a altered with ease resolution by an independent commission supported by two-thirds of all members of the houses.

18 Katiba News Jan/Feb 2011 Devolution of providing some services to a system of local government, but for which the laws had been made by the National Government. There was (and for the time being continues to be) another way in which power was decentralised and in particular through the Provincial Administration with the Provincial Commissioners through various levels up to the Chiefs.

This was far from devolution as the people neither had a say over the appointment of the administrators nor did they elect them. The differences between the old and the new system would best be We should now turn our backs to the past and move on to the horizon. represented in a table as follows: (see table on page 18). Administration and give it an Government or should they be the expanded role. Conversely, the subject of the devolved The fate of public servants whose ODM wing of the Government led government? jobs are redundant in the context by Deputy Prime Minister Musalia of the devolved system Mudavadi has criticised the plans Should it be eliminated completely and stated that the Constitution and the staff redeployed within Principals (Schedule 6 Para 17) was clear that the Government? Nobody knows There has been wide speculation the administration should be what will happen after the five over what is to happen to restructured. years that have been provided for members of the Provincial the restructuring of the Administration in light of the fact Other ministers in the camp administration lapses. It may be that the provision of government including Wycliffe Oparanya and appropriate to form an services has been bestowed on the Otieno Kajwang have been more independent team to plan how to County Government with little forthright in declaring that the restructure the administration. mention on the Provincial Provincial Administration stands Administration. abolished under the new Ideal devolved systems Constitution. They insist that if the Spain has been termed as the Both principals of the Coalition executive is interested in dealing most devolved state in Europe and Government namely President with persons on the ground in any was considered as a model for Kibaki and Prime Minister Raila county, then he should coordinate devolution in other countries Odinga, while supporting the new with the elected governors. including the United Kingdom. The Constitution during the devolution commenced with the referendum campaigns assured The Government does not seem passage of a constitution in 1978 the officials that they would not sure or decided on what to do with that transformed Spain from lose their jobs under the new the Provincial Administrators. authoritarian, highly centralised dispensation. Schedule 6 Article 17 requires that regime into a pluralistic, liberal However, after the Constitution the national government shall parliamentary democracy. was promulgated, there have been restructure the Provincial The model of asymmetrical conflicting signals on what shall Administration in accordance with devolution in Spain has been happen. and the system of devolved called "coconstitutional" in that it government. The term is neither a federal nor unitary Prof George Saitoti, in whose restructuring, as used in this model. Autonomous nation- docket the Provincial context, is very ambiguous. Should regions exist alongside and within Administration falls, has indicated the administration still be the Spanish nation-state. plans to retain the Provincial answerable to the National

Katiba News Jan/Feb 2011 19 Devolution Political power is organised as a assemblies except national policy central government with devolved on foreign affairs, defence, social Each province has its own power for 17 autonomous security, macro-economic provincial government, with communities. These regional management and trade. legislative power vested in a governments are responsible for provincial legislature and executive the administration of schools, The UK government also remains power vested in a provincial universities, health, social services, responsible for government policy premier and exercised together culture, urban and rural in England. The UK Parliament is with the other members of a development and, in some cases, still able to pass legislation for any provincial executive council. policing. There are also two part of the UK, though in practice autonomous cities Ceuta and it only deals with devolved matters The premier is elected by the Melilla. with the agreement of the legislature and appoints the other devolved governments. members of the executive council, The government of all which functions as a cabinet at autonomous communities is Within the UK government, the provincial level. The devolution of based on division of powers Secretaries of State for Scotland, power to municipal level is comprising: Wales and Northern Ireland ensure furthered by the province's ability •A Legislative Assembly whose that devolution works smoothly, to assign any of its legislative members must be elected by and help to resolve any disputes. powers to a municipal council in universal suffrage. They represent their parts of the that province. •A Government Council, with country in UK government, and executive and administrative represent the UK government in Buttressed functions headed by a those parts of the country. National legislation may prevail president, elected by the over provincial legislation in cases Legislative Assembly and The position of England is where they conflict on matters nominated by the King of awkward since it is the only such as national security or Spain; country of the United Kingdom economic unity, the protection of •A Supreme Court of Justice, that does not have a devolved the environment, or in matters under the Supreme Court of parliament. So, while Scottish and prejudicial to the interests of the State, which head the Welsh MPs continue to make laws another province. This type of judicial organisation within the over England on any matters, devolution is further buttressed by autonomous community. England MPs cannot make laws a well structured and organised over Scotland or Wales on local government system. Remarkable devolved matters. While provinces (provincias) serve The South African devolved as the territorial building blocks for In tandem system, though based on provinces the communities, the provinces Devolution in the UK being country unlike the Kenyan one based on are in turn integrated by based is still at a very high level for districts, shares a close municipalities (municipios). locals to feel an effect. To meet the resemblance with the devolved Municipalities are granted citizens? expectations, the system in Kenya in terms of the autonomy to manage their internal devolved governments of workings of the regional affairs, and provinces are the Scotland, Wales and Northern assemblies and Kenya can learn a territorial divisions designed to Ireland always act in tandem with lot from the South African carry out the activities of the the Local authorities. experience. State. South Africa has a system of We must not also lose sight of the Devolved government in the UK is devolved government based on fact that states formulate their not as remarkable as the one in provinces and known as Provincial devolved systems based on their Spain. Devolution occurred after government. There are nine individual experiences and the referendums in Scotland and provinces: Eastern Cape, Free histories. We must, therefore, Wales in 1997 and in both parts of State, Gauteng, KwaZulu-Natal, establish our devolved system in a Ireland in 1998 whereupon the UK Limpopo, Mpumalanga, Northern way that suits our needs and Parliament transferred a range of Cape, North West and Western experiences. powers to national parliaments or Cape.

20 Katiba News Jan/Feb 2011 THE KONRAD ADENAUER FOUNDATION IN KENYA onrad-Adenauer-Stiftung is a German political Foundation which was founded in 1955. The Our programmes Foundation is named after the first Federal Among other activities we currently support: K Working with political parties to identify their aims Chancellor, Prime Minister and Head of Federal Government of the then West Germany after World and chart their development so that democratic War II. Konrad Adenauer set the pace for peace, institutions, including fair political competition and economic and social welfare and democratic a parliamentary system, are regarded as the development in Germany. cornerstones for the future development in Kenya. Dialogue and capacity building for young leaders for The ideals that guided its formation are also closely the development of the country. Therefore, we linked to our work in Germany as well as abroad. For 50 organise and arrange workshops and seminars in years, the Foundation has followed the principles of which we help young leaders to clarify their aims democracy, rule of law, human rights, sustainable and strategies. development and social market economy. Reform of local governance and strengthening the activities of residents' associations. These voluntary In Kenya, the Foundation has been operating since associations of citizens seek to educate their 1974. The Foundation's work in this country is guided members on their political rights and of by the understanding that democracy and good opportunities for participation in local politics. They governance should not only be viewed from a national provide a bridge between the ordinary citizen and level, but also the participation of people in political local authorities, and monitor the latter's activities decisions as well as political progress from the grass with special focus on the utilisation of devolved roots level. funds. Introduction of civic education to schools and Our aims colleges. We train teachers of history and Our main focus is to build and strengthen the government in civic education. In addition, we institutions that are instrumental in sustaining participate in the composition of a new curriculum democracy. This includes: on civic education. Securing of the constitutional state and of free and fair elections; Our principle is: Dialogue and Partnership for Protection of human rights; Freedom, Democracy and Justice. Supporting the development of stable and democratic political parties of the Centre; Contact address Decentralisation and delegation of power to lower Konrad-Adenauer-Stiftung levels; Mbaruk Road No. 27 Further integration both inside (marginalised P.O. Box 66471 regions in the North/North Eastern parts) and Nairobi 00800, Kenya. outside the country (EAC, NEPAD); and Development of an active civil society participating in the political, social and economic development of the country.

1 Katiba News Jan/Feb 2011 MEDIA DEVELOPMENT ASSOCIATION Media for Change