Who forgot to devolve the Judiciary?

November 25, 2009 by · Leave a Comment 

Chapter 13: Judiciary

scales-of-justiceThis chapter has been a lot like stubbing in the dark for me… While reading it, it’s apparent that there is a lot about our judicial System that I did not know, therefore can not make a comparison or claim any improvement in this Draft.

Despite this limitation on my part, I have come across same clauses that spell out accountability.

For instance. According to the Seventh Schedule (Article 312) Transitional and Consequential Provisions, there shall be an interim Judicial service set up within 30 days of enacting the new Laws. This Service will vet all judges interested in retaining their Jobs. All those who will be cleared of corruption Judges will continue with their Tenure. Of note also, is the fact that the Chief Justice will be barred from holding office for more than 10 Years and may not serve past the Age of 70 Years.

Firing of corrupt and ineffective Judges will no longer be a reserved duty of the president alone. An act of parliament would also suffice in riding the country of these types of judges. This is especially welcome, and should see Parliament have what it takes to institute judicial reforms.

Though a lot that has been included is good, there is one issue that seems like a gross an glaring omission in the draft. The fact that there is no mention of County and Regional Courts to go along with the County and Regional Executives and Assemblies. No regional Attorney Generals or County Attorneys have been mentioned in the draft.

The whole idea of having a Devolved is so as to bring government closer to the Mwananchi.  Not only to bring the Executive and the Legislative governance to the people, but also the Judiciary.

I think our Experts overlooked this issue, due to the fact that they were too busy listen to interest groups and politicians. Had jurisprudence guided them on this issue, I think they would have come to the realization that the legal needs of a Nomadic people in the arid North of the country would not be the same as those of the Coastal people. They therefore should have sought to establish Local County Courts that would specialize in a people’s needs.

Devolved Government

November 19, 2009 by · Leave a Comment 

Devolved Government: CHAPTER 14 of the Harmonized Draft Constitution of Kenya

committee of experts logoI’m sure that most by now have had a chance to look at this chapter, being the Juiciest of them all. Ladies and Gentlemen Majimbo is Here and it looks like it may be here to stay.

Many politicians in the Republics short life have attempted to bring about a devolved government.

It is not a well known fact however, that the original plan was created by Wilfred Havelock, Michael Blundell, and R. S. Alexander – all members of the Pre-Colonial Parliament, who envisioned hiving the country into 3 devolved Regions. That plan never came to fruition then – but but that was not the last we ever heard of it.

mr-ntimama In the decades that followed, this idea would be the subject of much controversy. With it’s opponents claiming it to will promote ethnicity and tribalism, and on the other side supporters championed its  focus on equitable development.  The most famous proponents of Majimbo in different dispensations of the nations Political timeline were the Kenyas First VP, the late Jaramogi Oginga Odinga, the late Minister Hon. Ronald Ngala, the soon to be octuagenarian Minister Hon. William Ole N’timama and lately joining those ranks are Agriculture Minister Hon. William Ruto and the Prime Minister Hon. Raila Odinga.
They have tried different tactics to market it: From the infamous Majimbo brand to District Focus and now Devolved govt.

After years of being against it…. I seem to have developed some optimism towards the devolved government. However, the number of Governments that have been proposed in this latest draft maybe enough to through the country into a bureaucratic mess.

As stated in Chapter 14 of the Harmonized draft Constitution, Kenya will have 4 legislative levels of government.
Senate, Parliament, Regional Assembly & County Assembly

We will also have the pleasure of being served by 4 levels Executive officers with their corresponding Executive Councils to tow. They are:-
The Prime Minister & Cabinet, the Regional Director & the R. Executive Council, The Mayor and at the ‘mashinani’ (ground level) the County Governor and the County Exc. Council.

In Nairobi, the Mayor will enjoy a more powerful role than other Mayors in the country as he will serve as a defacto Regional Director. The Metropolitan region’s four Counties will have no County Governors, leaving the Mayor to be the only executive authority in the region. The corresponding four County Council Assemblies, however, will exist  adn they will be represented by a Senator and in Parliament alike.

The Bureaucracy will not be in Nairobi, as much as everywhere else in the Country.

One would expect, that  for the first few Decades, as we get used to the new constitution – confusion and bickering would prevail in governance. The Mwananchi will continuously be pushed back and forth in his/her bid to access services that is the right of every tax payer.
One can not help but wonder what the conversations would be like with a COuncil representative. “Hapana, hio sio mambo ya County kanjo… Eeh, tafadhali enda uongee na kanjo ya Regional. ” And even the most helpful official could only offer advice, “Na wikikataa, jaribu Mayors office ama uongee na MP wako.” ISH!
And if one had a need for renting a public space or even set up a business, getting the right permit could prove to be more than a trip to kanjo. Try 3 kanjos.

Then we have corruption, which as it stands according ot the TI- Kenya reports, accounts for 30% of the average workers income issued as bribes. if not curbed, the situation could arguably get worse under this new constitution. Should your Council Askaris, regular Police or any government official decide to give the Mwananchi hard time,  they could use any number of  excuse. From tickets for not having an appropriate permit per any of teh given government bodies to finding ways to make the red tape work in the benefit of the official – the citizens rights could easily be trampled on, and to undo this mess could take a mind numbing court action and expensive legal fees.

Then there is the issue of Ethnicity. If our Politicians are allowed to Hi-jack the process, each Regional government could end up serving as a Tribal HQ that could be used to nurse and develop Anti-Nationalistic views and movements. There are those who would seek to take advantage of the regions to solidify their positions as community leaders.

Much of the Majimbo talk that preceeded the 2007 Election, is directly linked to the post election violence that was witnessed. A mis-informed lot was convinced by their leaders that instituting Majimbo would result in taking over farms, businesses and property that was in ‘their region’ and was owned by ‘outsider communities’. This type of thinking woudl need o be cartailed…. and in a Country that has been in the precipice of war, such matter can not be ignored.

All this could be averted however, if care is taken to see to it that the need for devolution does not come before, national Peace and the need for effective service to the citizen. It is easy for one to see that the idea is a noble one, but perhaps we would end up with one too many ‘regional governments’.

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