It was George W Bush who, in a moment of terrorism induced fury, defined interstate relations in binary terms; you were either for America or against it.
This binary approach, which defines most of public discourse, may be politically correct, but totally unrealistic in the convoluted world of public administration and politics. Nowhere has this been more obvious than some of recent goings on.
On August 7, the President announced formation of a task force to facilitate compensation to police brutality victims. There was an immediate public outcry against the idea. How could the government that had overseen the brutality oversee the compensation, argued its opponents? Secondly, the independent Kenya National Commission of Human Rights had been established for precisely such a mandate, making it more credible in such a delicate process.
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Even before the ink was dry on that proposal, the President established a Multi-Agency Team to coordinate the fight against corruption. One significant issue raised by the MAT detractors was the heavy role of the executive in the MAT. To many analysts, the principal reason why the 2010 Constitution had separated the EACC and the DPP from the Executive was the realisation that the Executive was the most significant player in all matters corruption, making this directive inappropriate.
Even as these issues were simmering, former Prime Minister Raila Odinga raised another constitutional question; the oversight powers of the Senate over Governors. As a legal purist and believer in fidelity to the Constitution, my mind aligns with the position taken by opponents of these and similar proposals. But the pragmatist in me that wonders whether the commitment to legal purity is reasonable, practical or even progressive. Is there a middle approach that enables the country to move, however slightly, forward.
Should we accept evolution, or must we pursue revolution? Take the victim compensation proposal. Of course, in an ideal world such a process should be overseen by the independent human rights commission not just as a matter of legality, but for the sake of legitimacy. But from a victim’s perspective, which is better; an ideal aspiration that satisfies constitutional text but delivers no compensation, or some compensation even if it emanates from a not so perfect process?
Since such a process would not prevent a recipient from pursuing just compensation if they still felt aggrieved, what fundamental prejudice would be caused by the Makau Mutua process? I have seen victims brutalised in the 80s getting their court awards 40 years later, and even then, have not received actual monies from the Treasury. Are we allowing the best to be the enemy of the good? On the anti-corruption MAT, any realist will recognise that unless the Executive is invested, however slightly, in an anti-corruption process, it will lead to zero progress. Consequently, there is value in encouraging any act that signifies some commitment to fighting the scourge emanating from the Executive. There is also the added benefit of a coordinated approach to fighting corruption, removed from the typical silo approach that infects government operations and results in duplication, resource wastage and general ineffectiveness. For as long as independent institutions included in the MAT retain their constitutionally donated powers to carry out their mandate is there a place to borrow the positive aspects of a coordinated approach? And by the way Uhuru worked through an informal anti-corruption MAT in his second term.
Finally, to Tinga’s proposal on the Senate. Truth be told, the takeover of oversight powers by the Senate has weakened the County Assemblies. But I appreciate Senate’s argument that the power balance at the County is so heavily weighted against County Assemblies that the political muscle of the Senate is necessary for certain levels of county oversight.
Is there a place for recognising this political fact, and allowing the Senate oversight powers at least in respect of Governors, even as we strengthen County Assemblies? Is there a way to massage the constitutional text, considering our political realities? I raise these issues to challenge our instinctive resort to legal purity in the complex world of governing. Maybe its ageing, but I am more invested in pragmatic governing approaches even as we continue to pursue the ideals we all hope for.
The writer is an advocate of the High Court of Kenya
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By Kamotho Waiganjo