Why do I always fear for the worst everytime I hear something has to go through Parliament?
Among the three arms of government, Parliament thumps its chest the loudest as being the one true democratic entity by the people and for the people. But that’s all on paper. In practice, the Kenyan people have lost total faith in parliament to put their selfish interests aside and speak for the people who elected them into office in 2007.
However, there’s a silver lining.
Kenyans appear to have woken up and are beginning to insist on the concretization of constitutional ideals like public participation, institutional transparency, individual and collective responsibility, meritocracy and accountability. A good example here is the on-going vetting process within the Judiciary and now the Police. Lest we forget if it wasn’t for the peoples’ insistence that the Constitution be followed to the letter, we would have had Alnashir Visram, Githu Muigai and Kioko Kilukumi as our CJ, AG and DPP respectively.
Fast forward to the present day where we appear to be headed back to the same primitive democracy of ethnicity and political horse-trading as the CIOC is expected to table tomorrow before Parliament the a report containing the confirmed nominees for the positions of CJ, DCJ and DPP.
The democratic thing for Parliament to do would be to uphold the constitution as the supreme manifestation of the will of the Kenyan people. In particular, Parliament has the opportunity to set a clear precedent by breathing life into Chapter 6 of the Constitution which speaks to “Leadership and Integrity”. If a candidate for public office clearly falls below the demands of Chapter 6, such a candidate should not be confirmed regardless of who they are, where they come from or who they know.
However, what we’re hearing from loose-lipped parliamentarians in the media only goes to confirm our worst fears. Take for instance the following statements:
1) “Tobiko is a qualified lawyer from a minority ethnic group”
This begs the question: “What does a candidate’s ethnicity have to do with his suitability or lack therof for appointment?” While we’re on the subject, which is this Constitution MPs are reading from when they insist that all public appointments must be made with due regard to regional balancing? There’s no such thing!
2) “We need a ‘friendly’ DPP”
This begs the question: “friendly” in the whose eyes? We know that public officials fear the arrival of a zealous DPP that would commence or reopen investigations and fearlessly prosecute all those connected with any criminal conduct while in office. Ironically, the people would readily embrace precisely such a no-nonsense DPP that would ensure the so-called ‘big fish’ in this country are no longer allowed to circumvent the law with impunity.
And ofcourse the most frightening statement being uttered by a section of MPs has been: “If you don’t support our Tobiko, we will shoot down the appointments of Barasa and Mutunga.”
Are we really back to this, again?
Gone are those days when Parliament could hold the country hostage because the self interests of certain groups of MPs have not been met. Last year, Kenya ushered in a new dawn of constitutional supremacy where the will of the people is supreme. In the present case, even if Parliament decides to ignore the weighty concerns surrounding Tobiko’s candidacy and confirms his name, the President in consultation with the Prime Minister still have the final say on whether to appoint him or not. If the Principals also fail to listen to the people and appoint Tobiko, then any interested parties can go to court and challenge this appointment. And if this court action is not successful, there is a clear constitutional provision providing for removal and resignation of the DPP which doesn’t involve parliament but is done through an independent tribunal instead! (phew!)
As we approach the one year mark since promulgation, Kenya remains a nascent constitutional democracy and therefore it is up to us, the people, to stay vigilant and proactive in all matters requiring public participation especially where Parliament is involved. Kenyans must yearn for a positive transformation in all institutions of governance and this daunting task cannot be entrusted to third parties or MPs. The buck stops with all of us.