“Regional Balancing” and the Bastardization of Kenya’s Constitution

There is no doubt that the Government is the single largest employer in this country and I am but one of the many faceless public servants behind the scenes doing my bit to help run this great nation of ours. Beyond being a public servant, I am a Kenyan and it is in this capacity that I stand on this here DR Soapbox to denounce a dangerous practice slowly institutionalising itself within the Public Service.

Two words: Regional balancing.

In its simplest form, regional balancing is about public officials and administrators making final decisions on the composition of government offices based on the ethnicity of prospective and current staff.

The relevant legal provision underpinning this practice is found under Article 232(1)(h) and (i)(iii) of the Constitution:

“The values and principles of public service include… representation of Kenya’s diverse communities and affording adequate and equal opportunities for appointment, training and advancement, at all levels of the public service, of the members of all ethnic groups.”

So on the face of it, one can clearly agree that regional balancing is important in that it allows for greater representation of people from various ethnic backgrounds in matters of exercising public power and decision-making. However, I believe that this notion is being distorted much like ethnicity is often used negatively by politicians to antagonise and divide the populace along tribal lines.

Over the last few months, we have witnessed a new practice dubbed “vetting” for all short-listed candidates seeking appointment to top public offices in the Judiciary, Executive, Constitutional Commissions and Independent Offices.

In most cases we have been told by the Media that shortlisted names and nominees arrived at by the various Selection Panels and by the Principals are made taking into consideration the ethnic background of the applicants. This begs the question: how do the Public Service Commission Selection Panels and the Principals decide what someone’s ethnic background is? I use the word ‘decide’ deliberately because there has been no single Public Service interview where the Panel has openly asked an applicant the all important question:” What do you consider to be your ethnic group/background?”

Meanwhile top government jobs are being decided not only the basis of merit but to comply with certain unclear set of ethnic arithmetics. This can only lead one to the conclusion that the government has taken it upon itself to assign ethnic identities to Kenyans for the purpose of determining their suitability for government jobs. All this being done under the guise of upholding the Constitution. Ask yourselves, how does the government claim to be carrying out regional balancing when it takes it upon itself to decide what your ethnicity is or is not or what they think it should be?

The government has no right to arrive at decisions about any Kenyan’s ethnic identity without expressly asking the individual in question what they believe their ethnicity is. It is one thing to have police officers stop you in the middle of the street and ask to see ID then looking at your surname, they decide who you are and where you come from. But it is quite another thing to have a Selection Panel interview you for a government job, not ask you directly what you believe your ethnic background to be then later decide for you what your ethnicity is and use that decision in “regional balancing” in allocation of posts. This is unconstitutional and violates every Kenyan’s right to human dignity and equality.

Not to be misunderstood, I fully understand that regional balancing is just one of the factors that the government considers in arriving at nominees and appointees to government positions. But most of you will agree that this animal called regional balancing is mentioned much more than other factors that may be equally or even more important such as integrity, honesty, merit, experience, qualifications, suitability etc. I don’t see why decisions for every single appointive office in this country have to come down to this issue of ‘regional balancing’ when in all cases the candidates themselves are not given an opportunity to state clearly what their ethnicity is. Had they been given this opportunity, the considerations of regional and ethnic balancing would be more credible and transparent in the eyes of the public.

Consider this example, the newly created Independent Ethics and Anti Corruption Commission is looking for suitable candidates for the positions of Chairperson and Commissioners. You and 8 other candidates are shortlisted to appear before the relevant Selection Panel. Each of you are asked, as a matter of ensuring certainty, what our ethnicity is. Five interviewees during their respective interviews answer: “My tribe is Kenyan” while the remaining 4 give the names of their individual tribes. The Selection Panel is required to submit only 4 out of the 9 shortlisted names to the Principals for nomination. How will the Selection Panel carry out ethnic and regional balancing in such a case? Should only those four that put forward the names of their individual tribes be considered, on the premise that the 5 other candidates (the majority) are lumped together as being “tribe Kenyan”? What about competence and merit? What about your performance during the interviews and the resulting score? Don’t these things matter?

I am raising the alarm over what is emerging as a serious breach of our supreme law and a dangerous trend within government. Using the Constitution to justify ethnicity and tribalism violates the very sanctity of the Social Contract entered into between the Government and the Governed on the 27th of August 2010. I refuse to have my identity, dignity and self-worth reduced to an ethnic group for purposes of some political game called ‘regional balancing’. No one has the right to decide for me who I am and where I come from. If I ever appeared before a Selection Panel for appointment or promotion, I expect the Government that I have so diligently served, to have the decency and respect not to assume they know me and my background. Because they don’t.

Are we asking for too much by insisting that the Government asks first, before deciding for us?

5 thoughts on ““Regional Balancing” and the Bastardization of Kenya’s Constitution

  1. This ethnic balancing is becoming a measure to fix some political duels….look at what is happening to the IEBC! The Ruto camp [whatever that is] claims that the choices of the President and PM are erroneous…..on what basis…regional blah blah blah…..at least that is what I hear.

    How these issues will pan out will be of great interest to constitutional scholars and lawyers.

    • In such cases, Parliament and the Courts MUST step in and remind the Executive that although it’s the arm of government controlling the purse strings that employs the public service, it cannot act ultra vires the Constitution.

      How do we expect to have socio-cultural transformation in this country when the government itself cannot lead by example and continues to engage in ethnic labeling so shamelessly?

  2. I’ve always be a strong supporter of exclusively competence based recruitment, whether in government or private sector. The moment, identities creep in as part of the criterion then some people end up being oppressed for who they are while the other group tend to enjoy privileges they don’t deserve just because they are this and that and this and all that kind of bullsh*t. Come to think of it, there are as many Kenyans who benefit from “Regional and Ethnic Balance or Gender Balance” just as much as there are that get discriminated on by such social based disciplines when it come to hiring. This is a reality we can’t escape and while I recognize to the importance of having such social disciplines like identities considered, I still think competence should be the sole factor in determining the suitability of a candidate. This in itself, I think creates the culture of competition, through competition, sense of entitlement just because you are this or that is eliminated and people get to actually enjoy the benefits of their hard work – Keyword is HARD WORK. Nobody works hard just be weeded out based on ethnicity or gender, that is discrimination, just as bad as negative ethnicity or racism. So it’s upon the government to set structures and policies that enables every Kenyan regardless of your ethnicity, region or gender to succeed if they work hard.. Can we say Tobiko got the job simply because he is a Maasai and Maasais are considered a marginalized community? Truth be told, there were so many issues to do with his integrity and competence that were raised but were never investigated simply because he is from a “marginalized community”… Maybe he was the best person for the job among the applicants – We don’t know that for sure, but the issues that were presented about him to the public were of great concern and still he landed the job.

    • Tobiko is a good case to mention. I blogged about his nomination previously and what was disgraceful about that whole nomination process was to hear a section of Maasai MPs saying threatening to paralyse parliamentary proceedings if their “son” was not given the nod. Ethnic politics has no place in the new Constitutional Kenya and ethnic-minded leaders should all be voted out come 2012. We elect MPs to serve Kenya not advance their own tribal agendas.
      That said I dont have a problem with the provision requiring ‘regional balancing’ because it promotes diversity and unity amongst our people but the manner in which one considers regional balancing must be consistent with other factors eg. merit, competence as well as other provisions in the Constitution as well.
      I hear Parliament has stepped in to carry out an audit to see how some of these nominations were made. Let’s hope it bears some fruit.

  3. Pingback: Fallacies of Equality and Inequality: Will Our Rights Lie in Limbo At the Pleasure of the State? | Diasporadical

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