Saturday, September 5, 2009

Kenya: Judges Find Their Legs, Challenge President's 'powers' to Create New Administrative Units

Since 1992, Kenyan Presidents (Moi and Kibaki) have blatantly violated the law by creating new administrative units (Districts) without powers and without recourse to popular participation.This actions have been in part pure gerrymandering, and in part a placation of targeted electorate to vote in a particular way. Since power is constitutionally centralised in the Presidency and with it the entire kitty of national resources for him (we haven't had a woman yet) to dole out as he wishes, creation of such units was to convince citizens (who are clearly deluded) that 'power is moving closer to them'. Lacking in resources to put up offices for newly minted administrators (who report to the office of the President indirectly), such units have not brought services closer to the people. It had become routine for ethnic lords to lobby the President for new districts. While resisting true devolution, the Presidency doled out districts at his discretion ... 'rewarding' loyal voters, tribes and clans. More recently, it was reported that President Kibaki had created 20 'sub-provinces'...without consulting coalition partners, political parties, Parliament or the people. Yet these actions have far reaching implications for democracy and how resources will be shared in a future devolved government. It is difficult to fault those who argue that the Presidency is single-handedly attempting to predetermine the future outlook of the country.Under the Districts and Provinces Act, 1992, only 46 out of the current 256 Districts are constitutional and legal. Since the creation of any new districts and provinces requires new legislation, the power to create such units rests with Parliament, and not the Executive.

In a historic judgment
, a High Court judge has effectively declared null and void all districts created in 'road-side declarations' since 1992, in total, 210 districts. A challenge was brought with respect to declaration (made at a public rally) carving Nyamira North District out of the existing (legal) Nyamira District. Is the Kenyan judiciary finally finding its legs? Such a judgment would have been unheard of in days gone by. Judges have been removed for less (in spite of constitutional guarantees of tenure).

The answer to this question has implications for the accountability debate in Kenya. The Waki Commission took the view that the judiciary could not be trusted with crimes arising out of the post electoral violence. The merits f the case notwithstanding, the question is whether Kenya may still have judges who can speak without fear, and to who the weighty task could be entrusted?

The boundaries issue shows that the notion of impunity in Kenya is much broader than 'criminal impunity'. The idea that public officials can act outside the law without challenge is nothing if not impunity. As one contemplates how to deal with post electoral crimes, and impunity linked to gross human rights violations, broader institutional arrangements need to be put in place to address other forms of impunity and to instill greater regard for the rule of law....this can be done in part through current institutional and constitutional reforms.

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