The Coalition Government of President Kibaki and Prime Minister Raila Odinga is celebrating its first anniversary. Its achievements are neither profound nor bountiful. It stopped the civil war triggered by the contested presidential election.
The sharing of Cabinet and other positions of authority strictly on ethnic lines among the two political factions is another achievement.
Its failures are many and enormous. It includes runaway corruption, bad governance, engrained and official tribalism, famine, economic deterioration, institutional erosion, mistrust of the state and its authority and the new fad of outsourcing experts and institutions.
If Kenyans think the worst is behind us, then we are mistaken. We haven’t seen anything yet. Kenyans must be conscious of the dangers facing the country at present and should be prepared for the threats looming on the horizon.
The worst is not behind us. The worst is ahead of us. It is time to appreciate some of the dangers that could engulf the republic and take precautionary steps.
Constitutional deficit
The first great challenge Kenya faces is posed by a crippling constitutional deficit in the mandate of the two principals.
Let me start with the Prime Minister.
His is a constitutional office with limited executive authority. His constitutional authority is however limited to the executive arm of government and does not extend to other arms of government.
It was thus interesting to hear the Prime Minister telling Kenyans there will be radically surgery of the Judiciary. On what constitutional authority, if one may ask?
The Prime Minister does not have a constitutional mandate to undertake fundamental restructuring of the Kenyan State in any way. He has no mandate of whatever nature from the Kenyan people. The political rationale for Raila sharing executive authority with Kibaki was a constitutional rationalisation that neither he nor the President had a clear and undisputed mandate.
Similarly, Kibaki due to the disputed election and the narrow margin of victory, according to the official result, also lacks the mandate of the people.
They must remember that the coalition was not brought through the will of the people. On the contrary, it was a consequence of the spoils of a war they unnecessarily unleashed on Kenyans in their blind pursuit to either hold on to power or grab it.
This constitutional deficit means that the constitutional legitimacy of the two principals to load it over ordinary Kenyans must be challenged. As their rule travels far in time and in ignominy, their contested legitimacy will shrink correspondingly. Their authority will wane too. The future portends a serious constitutional crisis.
The second danger is a mutation of executive authority. Once upon a time we had a one-man executive president. Then to buy peace from Kibaki and Raila we divided executive authority between them. Then we moved to the trinity of executive authority when Kofi Annan joined the President and the Prime Minister in running the country.
Lastly we have the European Union ambassadors and American ambassadors contributing to decision making.
Overzealous foreigners
Annan undoubtedly has done great favour to Kenyans and we are eternally grateful. But we must state to his face now that he is functus officio and declare him surplus to requirement. His continuous intrusion in the executive authority and his latest summoning of the President and the Prime Minister to his residence in Geneva is an absolute disgrace.
Keen Kenyans may have also noticed that whenever America’s ambassador Michael Ranneberger addresses the Press, he starts with the sentences "the views of Kenyans… or majority of Kenyans… the will of Kenyans…" In the absence of any serious competition, Ranneberger has arrogated himself the role of the peoples’ spokesman.
Kenyans must urgently demand that the eclipse of sovereignty that enveloped us a year go must end like all other eclipses do.
Cover up
The third danger is a ferocious national exercise to undermine national institution. On this account the Prime Minister is leading a new and very unnecessary exercise of outsourcing Kenyan jobs. Raila’s suggestion that we get a foreigner to head the Interim Independent Electoral Commission was shocking. This came hot on the heels of his outsourcing of a German coach to manage Harambee Stars.
Then we have various reports that make serious allegations against the police, army, and prisons department and all law enforcement organs of the State. No one should cover up or make excuses for the failures of security organs of the State, and they are many. But the trend to destroy national institutions as pastime is alarming and unsettling.
Kenyans must remember the constant vilifications, attack and maligning of national institutions have a corrosive effect, and time will come when we would have destroyed them, overrun them and butcher one another in their absence.
The fourth danger is posed by local NGOs remote controlled by foreign embassies. It is in the national interest that Parliament must urgently enact a legalisation that allows for funding of NGOs from the Exchequer.
A fund run by an organ created and accountable to Parliament in the mode of the Constituency Development Fund is urgently needed. There are many local NGOs that do wonderful job in the education, health sectors, political education and grassroots mobilisation.
Such NGOs must be funded through a local fund annually allocated by Parliament. In addition to freeing them from the shackles of foreign embassies that run them as an extension of their foreign policies, such a mechanism will also bring a level of accountability that is lacking in the sector.
The fifth danger is the constant bashing of the Judiciary. Discrediting the Judiciary by much discredited politicians has become the norm, and it is annoying. An efficient and independent Judiciary is a good barometer to gauge the development of a country’s institutions of governance. We don’t have a Judiciary we can be proud of. It faces an acute shortage of resources.
It is deliberately undermined by the Executive. Corruption and poor work ethic are major problems. But the Judiciary functions, not optimally, but it functions nonetheless.
Recently Raila, Martha Karua and Justice Aaron Ringera, as if they rehearsed their lines, have in unison attacked the Judiciary for ruling against the Kenya Anti-Corruption Commission in three cases involving Anglo Leasing. Must our courts rule in favour of the Government to show their independence? Who said the government cannot lose cases? I have personally read the three judgements of the court. I know the facts of these cases. If I were the judge I would have ruled the same.
The central issue in contention in the Anglo Leasing cases, which the Government is hiding from ordinary Kenyans and which the court asked the Government is whether it can invalidate the contracts in court when the Attorney-General has written legal opinions certifying the validity, lawfulness, correctness and the binding nature and force of the contracts in dispute.
Contracts in dispute
That is the question the Government has failed to satisfactory answer. Ringera, Raila, and Karua want Kenyans to believe the yardstick of a good judiciary is one that gives judgement in favour of the Government. Didn’t we spill blood to overthrow that obnoxious and fallacious philosophy of yesteryears?
The sixth and the most serious danger is the likelihood of the Coalition Government going full length to 2012.
That would be a disaster. The country cannot survive another four years of this pathetic thieving union. Multiply the inadequacies and shortcomings of the regime during the past year by five and the country will snap. The elasticity of both the human tolerance and endurance of Kenyans is being stretched too far. It can go for probably a year and a half but not more.
According to our national agenda the next two years are dedicated to reforms.
During this period we expect to enact a new constitution, reform the electoral system and institutions and then go for fresh elections.
If the ongoing selection of commissioners to the independent electoral commission is anything to go by, then we are retrogressing in terms of reforms.
The circus surrounding the uncremonial dropping of Cecil Miller as chairman is pointer to a new creepy level of ethnic chauvinism.
The writer is an advocate of the High Court and a former Chairman of the Law Society of Kenya.
ahmednasir@ahmedabdi.com
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