A presentation to The Task Force on Devolution
at Avugwi Hall, Sabatia – Vihiga County on 25th February 2011
My first take is that this Committee has as the expertise and experience to first have developed a draft framework for national input rather than a blanket collection of ideas. This is because
1. There are a lot of reference materials on devolution as expressed variously over time by Kenyans you would have easily accessed including The Saitoti Report of 1991, CKRC report of 2004, the Bomas Report of 2005 and the CoE report of 2010.
2. The constitution already has outlined devolution, this taskforce has the responsibility to make it mare lucid by availing a framework and collating inputs from the citizenry to gauge if it meets and satisfies the imagination and expectations they have expressed over the years and their desires so far.
3. This would then have served to facilitate civic education on the purpose, mechanism and logistics of devolution as globally espoused and stipulated in the constitution.
All the same, we are here and I have the following suggestions on implementation of the devolved government;
a) Chapter 1 Art. 6 of the constitution states that “The governments at the national and county levels are distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and cooperation.”
While ‘cooperation’ is sufficiently defined and explained in the constitution (Chapter 11 Art. 189), ‘consultation’ has not been so treated and thus should be explained in the framework.
b) Considering Chapter 1, Art.6, the devolution framework should ensure that even the possibility of leadership is distinct by making it clear that if one contests a for a position in the national government, he/she cannot contest a seat in the county government at the same time. I submit so because nothing in the constitution stops anyone from contesting say Presidency and MP, or for my concern President and Governor! I propose that one be allowed to contest any combination of seats so long as the seats are not straddling national and county governments. This will enhance the envisioned devolution and ‘distinctiveness’ of Chapter 1 Art. 6 of the constitution.
c) That the elaborate standards of accountability at the national level be replicated at the county level including;
i. Impeaching the Governor, just like the President
ii. Recalling the Senator and Ward Representative just as the MPs will be recalled
d) Issues touching on core makeup of the county, people’s participation and principles of devolution should be subjected to county referendum without exception
e) That the standards and principles at the national assembly shall apply at the county assembly
f) That the range of county ward numbers be pre-determined and establish as per local parameters. I suggest that the range be between 30 and 90 wards.
g) That responsibility be followed with adequate funding. I propose that, following the practice elsewhere the actual allocation to the counties be realistically pegged at 50% of total revenue and not the minimalist 15% low end benchmark of 15% as provided for by the constitution.
h) Qualifications to leadership: The counties being a devolution of power and leadership from the national level for more effectiveness, I propose that the same standards of qualifications be applied at the county level. After all we are devolving competence nationally!
i) The framework should expressly provide that the county governments will provide sufficient civic and political education for any laws and policies developed for the counties prior to application.
Thank you and be blessed.
Sunday 27 February 2011
Saturday 26 February 2011
Is the Task Force on Devolution leading us down a garden path? By ndolo asasa Esq
After attending the Vihiga County public forum of the Task Force on Devolution, presenting my views and staying on, I have concluded that it is a waste of time and funds.
It was not well thought out, participation not informed, poorly attended and militarily controlled.
My take is that it would have been better had it;
i). Developed and presented a draft devolution framework as informed by constitution, their rich experience and successful practices elsewhere for public input.
ii). Conducted prior civic education on the same before collecting the same.
iii). Intentionally and purposefully mobilised the political class, especially parliamentarians in their county areas.
I submit that the consequence of current efforts will;
a). Be rejected at parliament level.
b). Result in demand for a 'people-involvement'
c). Receive a lot more of a unconstitutional submissions than substantive devolution inputs on devolution as provided for in our constitution.
All the same, I call on you to attend and submit your views; after all our constitution calls for people participation in governance at all times and levels, doesn't it?
It was not well thought out, participation not informed, poorly attended and militarily controlled.
My take is that it would have been better had it;
i). Developed and presented a draft devolution framework as informed by constitution, their rich experience and successful practices elsewhere for public input.
ii). Conducted prior civic education on the same before collecting the same.
iii). Intentionally and purposefully mobilised the political class, especially parliamentarians in their county areas.
I submit that the consequence of current efforts will;
a). Be rejected at parliament level.
b). Result in demand for a 'people-involvement'
c). Receive a lot more of a unconstitutional submissions than substantive devolution inputs on devolution as provided for in our constitution.
All the same, I call on you to attend and submit your views; after all our constitution calls for people participation in governance at all times and levels, doesn't it?
Thursday 10 February 2011
APPOINTMENTS OR APPORTIONMENT By ndolo asasa Esq.
10th February 2010.
Later today, parliament will determine upon being given submissions by 2 parliamentary committees on whether the appointments of the Chief Justice, Attorney General, Director of Public Prosecutions and Controller of Budget were done constitutionally or not. Realisation of constitutionalism only starts with the implementation of a constitution. If we get the implementation wrong, we miss constitutionalism. Meaning we tinker with dictatorship, with bad governance, with jungle rule.
Parliament may well miss the mark today if the question they will be answering is either whether the Principals consulted or not OR whether there was agreement between the Principals or not! Those will be the wrong questions to answer.
What must be determined and insisted not only by parliament but by all Kenyans is that the constitution MUST be truthfully implemented. The correct question to be determined then invariably is; were the appointments constitutionally done or not?
I submit:
1). The Implementation Schedule.
This is comprehensively provided for in the 6th Schedule of the New Constitution. True, it provides for timed suspension of immediate application of parts of the new constitution. But this parts are unequivocally specific and the duration of suspension given. These are expressly provided for in Schedule 6 Section (2) and (3) that specifies the Suspension of Provisions for the New Constitution and Extenstion of Application of Provisions of the Former Constitution respectively;
SUSPENDED:
(i) On Elections
“(a) Chapter Seven, except that the provisions of the Chapter shall apply to the first general elections under this Constitution.
(b) Chapter Eight, except that the provisions of the Chapter relating to the election of the
National Assembly and the Senate shall apply to the first general elections under this
Constitution; and
(c) Articles 129 to 155 of Chapter Nine, except that the provisions of the Chapter
relating to the election of the President shall apply to the first general elections under
this Constitution.
(ii) On Devolved Government
“The provisions of this Constitution relating to devolved government, including Article 187, are suspended until the date of the first elections for county assemblies and
governors held under this Constitution.”
(iii) Exemptions
“(a) elections for county assemblies and governors shall be held in accordance with Articles 177 and 180 of this Constitution; and
(b) the laws relating to devolved government, required by this Schedule and Chapters
Eleven and Twelve of this Constitution, shall be enacted within the period stipulated in
the Fifth Schedule.”
(iv) On Land
“Article 62 (2) and (3) is suspended until the National Land Commission is established.”
EXTENDED:
(v) On Citizenship
“Until Parliament passes the Act anticipated in Articles 15 and 18, section 93 of the former Constitution continues to apply.”
(vi) On Composition of Parliament, Voter Registration, Membership of National Assembly,
Parliamentary Service, Parliamentary Service Commission, Exercise of Parliamentary Power and legislation and Procedure in National Assembly EXCEPT prorogation of Parliament and The National Accord.
Sections 30 to 40, 43 to 46 and 48 to 58 of the former Constitution, the provisions of the
former Constitution concerning the executive, and the National Accord and
Reconciliation Act, 2008 (No.4 of 2008) shall continue to operate until the first general
elections held under this Constitution, but the provisions of this Constitution concerning
the system of elections, eligibility for election and the electoral process shall apply to that
election.
(vii) On Police
Until the National Police Service Commission referred to in Article 246 is established, section 108(2) of the former Constitution applies to appointments, discipline and the
removal of persons from office in the National Police Service.
Chief Justice:
Section 24 (2) of the 6th Schedule expressly provides for the appointment of the New Chief Justice without exempting the process of his/her appointment to the substantive provisions on Judicial appointments of the New Constitution. Section 24(2) of the 6th Schedule provides that “A new Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly.”
Chapter 10 Article 166(1) provides that “The President shall appoint—
(a) the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly; and
(b) all other judges, in accordance with the recommendation of the Judicial Service Commission.”
This in no uncertain terms provides for the appointment procedure and the role of the various institutions thus. It is cognizant to note here that the powers of the President are exercised subject to the National Accord and not the National Accord replacing the full constitutionally sanctioned procedure!
Attorney General and the Director of Public Prosecutions:
This is particularly provided for in Chapter 9 Article 156(2) and 157(2) respectively that the President will appoint with approval of the National Assembly. Of course remembering that as at now the President exercises his authority as provided for in the National Accord.
Controller of Budget:
Shall be appointed by the President with the approval of the National Assembly. This is provided for on Chapter 12 Article 228(1)
The Role of the National Assembly.
It is key to note the important role the National Assembly plays in the appointments by way of approval. The approval is not blank trading cheque for the National Assembly to make deals for themselves with the executive, but it is to ensure that the Constitution is fully adhered to in spirit and letter especially in reference to basic qualifications, Chapter 6 (Leadership and Ethics) and the Bill of Rights as emphasized in Chapter 4 Article 19(1), 20(1)& (4), Article 21(1,2&3) with special emphasis Article 27 of the Bill of Rights (Chapter 4).
I, like many Kenyan, have more hope than confidence that as this matter is disposed off and course of constitutionalism determined in Kenya by parliament, LEADERSHIP and NOT DEALERSHIP shall be tipping factor.
By the way, how did the Parliament, the commissioners to boot and seemingly ‘we the people’ accept Mr. Charles Nyachae to be the Chairperson on the Constitution Implementation Commission when the Principals disregarded the laid down procedure to appoint the Chair? Did we start on a wrong footing and subsequently miss the moral high ground to demand full, truthful and faithful implementation of the New Constitution?
Chapter 1 Article 1 of the Constitution is emphatic that “All sovereign authority belongs to the people of Kenya…” and that “we the people, may exercise our sovereign authority either DIRECTLY or through our democratically elected representatives”. Kindly note that direct exercise of sovereign authority is the PRINCIPAL way to be exercised! Meaning, we the people have an unalienable role to provide LEADERSHIP should our representatives seek dealership as is substitute to leading.
Over to parliament, on this path to constitutionalism in Kenya are you going to LEAD or DEAL?
Later today, parliament will determine upon being given submissions by 2 parliamentary committees on whether the appointments of the Chief Justice, Attorney General, Director of Public Prosecutions and Controller of Budget were done constitutionally or not. Realisation of constitutionalism only starts with the implementation of a constitution. If we get the implementation wrong, we miss constitutionalism. Meaning we tinker with dictatorship, with bad governance, with jungle rule.
Parliament may well miss the mark today if the question they will be answering is either whether the Principals consulted or not OR whether there was agreement between the Principals or not! Those will be the wrong questions to answer.
What must be determined and insisted not only by parliament but by all Kenyans is that the constitution MUST be truthfully implemented. The correct question to be determined then invariably is; were the appointments constitutionally done or not?
I submit:
1). The Implementation Schedule.
This is comprehensively provided for in the 6th Schedule of the New Constitution. True, it provides for timed suspension of immediate application of parts of the new constitution. But this parts are unequivocally specific and the duration of suspension given. These are expressly provided for in Schedule 6 Section (2) and (3) that specifies the Suspension of Provisions for the New Constitution and Extenstion of Application of Provisions of the Former Constitution respectively;
SUSPENDED:
(i) On Elections
“(a) Chapter Seven, except that the provisions of the Chapter shall apply to the first general elections under this Constitution.
(b) Chapter Eight, except that the provisions of the Chapter relating to the election of the
National Assembly and the Senate shall apply to the first general elections under this
Constitution; and
(c) Articles 129 to 155 of Chapter Nine, except that the provisions of the Chapter
relating to the election of the President shall apply to the first general elections under
this Constitution.
(ii) On Devolved Government
“The provisions of this Constitution relating to devolved government, including Article 187, are suspended until the date of the first elections for county assemblies and
governors held under this Constitution.”
(iii) Exemptions
“(a) elections for county assemblies and governors shall be held in accordance with Articles 177 and 180 of this Constitution; and
(b) the laws relating to devolved government, required by this Schedule and Chapters
Eleven and Twelve of this Constitution, shall be enacted within the period stipulated in
the Fifth Schedule.”
(iv) On Land
“Article 62 (2) and (3) is suspended until the National Land Commission is established.”
EXTENDED:
(v) On Citizenship
“Until Parliament passes the Act anticipated in Articles 15 and 18, section 93 of the former Constitution continues to apply.”
(vi) On Composition of Parliament, Voter Registration, Membership of National Assembly,
Parliamentary Service, Parliamentary Service Commission, Exercise of Parliamentary Power and legislation and Procedure in National Assembly EXCEPT prorogation of Parliament and The National Accord.
Sections 30 to 40, 43 to 46 and 48 to 58 of the former Constitution, the provisions of the
former Constitution concerning the executive, and the National Accord and
Reconciliation Act, 2008 (No.4 of 2008) shall continue to operate until the first general
elections held under this Constitution, but the provisions of this Constitution concerning
the system of elections, eligibility for election and the electoral process shall apply to that
election.
(vii) On Police
Until the National Police Service Commission referred to in Article 246 is established, section 108(2) of the former Constitution applies to appointments, discipline and the
removal of persons from office in the National Police Service.
Chief Justice:
Section 24 (2) of the 6th Schedule expressly provides for the appointment of the New Chief Justice without exempting the process of his/her appointment to the substantive provisions on Judicial appointments of the New Constitution. Section 24(2) of the 6th Schedule provides that “A new Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly.”
Chapter 10 Article 166(1) provides that “The President shall appoint—
(a) the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly; and
(b) all other judges, in accordance with the recommendation of the Judicial Service Commission.”
This in no uncertain terms provides for the appointment procedure and the role of the various institutions thus. It is cognizant to note here that the powers of the President are exercised subject to the National Accord and not the National Accord replacing the full constitutionally sanctioned procedure!
Attorney General and the Director of Public Prosecutions:
This is particularly provided for in Chapter 9 Article 156(2) and 157(2) respectively that the President will appoint with approval of the National Assembly. Of course remembering that as at now the President exercises his authority as provided for in the National Accord.
Controller of Budget:
Shall be appointed by the President with the approval of the National Assembly. This is provided for on Chapter 12 Article 228(1)
The Role of the National Assembly.
It is key to note the important role the National Assembly plays in the appointments by way of approval. The approval is not blank trading cheque for the National Assembly to make deals for themselves with the executive, but it is to ensure that the Constitution is fully adhered to in spirit and letter especially in reference to basic qualifications, Chapter 6 (Leadership and Ethics) and the Bill of Rights as emphasized in Chapter 4 Article 19(1), 20(1)& (4), Article 21(1,2&3) with special emphasis Article 27 of the Bill of Rights (Chapter 4).
I, like many Kenyan, have more hope than confidence that as this matter is disposed off and course of constitutionalism determined in Kenya by parliament, LEADERSHIP and NOT DEALERSHIP shall be tipping factor.
By the way, how did the Parliament, the commissioners to boot and seemingly ‘we the people’ accept Mr. Charles Nyachae to be the Chairperson on the Constitution Implementation Commission when the Principals disregarded the laid down procedure to appoint the Chair? Did we start on a wrong footing and subsequently miss the moral high ground to demand full, truthful and faithful implementation of the New Constitution?
Chapter 1 Article 1 of the Constitution is emphatic that “All sovereign authority belongs to the people of Kenya…” and that “we the people, may exercise our sovereign authority either DIRECTLY or through our democratically elected representatives”. Kindly note that direct exercise of sovereign authority is the PRINCIPAL way to be exercised! Meaning, we the people have an unalienable role to provide LEADERSHIP should our representatives seek dealership as is substitute to leading.
Over to parliament, on this path to constitutionalism in Kenya are you going to LEAD or DEAL?
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