Pow­ers that Wan­jiku doesn’t know she wields

Daily Nation (Kenya) - - SUNDAY REVIEW -

For­mer pres­i­dent Daniel arap Moi af­firmed the pri­macy of the cit­i­zen in our coun­try when he un­wit­tingly in­tro­duced the Wan­jiku metaphor. To counter the clar­ion call for peo­ple-driven con­sti­tu­tion-mak­ing, Moi re­torted: “What does Wan­jiku know about the con­sti­tu­tion?”

Civil so­ci­ety and the op­po­si­tion in the 1990s re­sponded to his dis­mis­sive re­mark by say­ing Wan­jiku was the ful­crum of con­sti­tu­tional re­birth.

Now the Con­sti­tu­tion’s pre­am­ble boldly as­serts: “We the peo­ple of Kenya … ex­er­cis­ing our sov­er­eign and in­alien­able right to de­ter­mine the form of gov­er­nance of our coun­try and hav­ing par­tic­i­pated fully in the mak­ing of this Con­sti­tu­tion: adopt, en­act and give this Con­sti­tu­tion to our­selves and to our fu­ture gen­er­a­tions.”

Ar­ti­cle 1 sum­marises the en­tire ci­ti­zens’ ba­sic law. “All sov­er­eign power be­longs to the peo­ple of

Kenya and shall be ex­er­cised only in ac­cor­dance with this Con­sti­tu­tion … The peo­ple may ex­er­cise their sov­er­eign power ei­ther di­rectly or through their elected rep­re­sen­ta­tives.”

The pre­am­ble then ac­knowl­edges the supremacy of the Almighty God of all cre­ation. The Kenyan Con­sti­tu­tion is, there­fore, based on the fol­low­ing hi­er­ar­chy of God: The cit­i­zen, fu­ture gen­er­a­tions, the Con­sti­tu­tion, sub­sidiary laws, and fi­nally the elected and bu­reau­cratic lead­ers.

Par­lia­ment and the county leg­isla­tive as­sem­blies, the na­tional and county ex­ec­u­tives, the ju­di­ciary and in­de­pen­dent tri­bunals as well as con­sti­tu­tional in­de­pen­dent com­mis­sions and of­fices all ex­er­cise power do­nated to them by the cit­i­zen.

But even when the Con­sti­tu­tion places the cit­i­zen above elected and non-elected func­tionar­ies, they do not ad­here to this truth. Pub­lic lead­ers have a ten­dency to act as if they are su­pe­rior to the cit­i­zen who puts them in of­fice. Ar­ti­cle 1 is premised on so­cial con­trac­tar­ian the­ory. Am­pli­fy­ing on this the­ory, Locke wrote “No man (or woman) can be sub­jected to po­lit­i­cal power of another with­out his (her) own con­sent.” Rousseau, Mon­tesquieu and other philoso­phers elab­o­rated on the so­cial con­tract be­tween the ruled and the rulers. Since all ci­ti­zens can­not be rulers, they ap­point a group to govern over the ma­jor­ity. How­ever, the se­lect few ex­er­cise del­e­gated author­ity. If they rule out­side the pub­lic in­ter­est or com­mon good, the cit­i­zenry can with­draw its man­date through elec­tions, court or even re­volt.

Another unique fea­ture of the

2010 peo­ple’s law is its em­pha­sis on the di­rect ex­er­cise of the ci­ti­zens’ sov­er­eign power through pub­lic par­tic­i­pa­tion. The Con­sti­tu­tion de­volves power from the cen­tre at the na­tional level to the county and ul­ti­mately to the cit­i­zen. Sched­ule

4 of the Con­sti­tu­tion, which dis­trib­utes func­tions and pow­ers be­tween the na­tional and county gov­ern­ments, iden­ti­fies one of the man­dates of the county gov­ern­ment as “en­sur­ing and co-or­di­nat­ing the par­tic­i­pa­tion of com­mu­ni­ties and lo­ca­tions in gov­er­nance at the lo­cal level” and as­sist­ing them de­velop the ad­min­is­tra­tive ca­pac­ity for gov­er­nance at the lo­cal level. The Con­sti­tu­tion, there­fore, en­vis­ages that not only does the cit­i­zen del­e­gate his/her sov­er­eign power to elected lead­ers and other pub­lic ser­vants, but he or she must also si­mul­ta­ne­ously con­tinue to ex­er­cise di­rect power through modes of ci­ti­zens’ gov­er­nance at the grass roots and other lev­els. Through pub­lic par­tic­i­pa­tion, an Of­fice of the Cit­i­zen is cre­ated to act as coun­ter­vail­ing power over those to whom he or she del­e­gates his/her power.

Ci­ti­zens’ or­gan­i­sa­tions also be­come the pub­lic space through which he or she can build ca­pac­ity for ex­er­cise of the po­lit­i­cal rights and the pursuit of eco­nomic, so­cial and cul­tural well-be­ing. The 2010 Con­sti­tu­tion has cre­ated the space for ci­ti­zens to re­spon­si­bly be co-cre­ators and corulers in their coun­try. This is a rare po­lit­i­cal re­al­ity in Africa, which makes Kenya’s Con­sti­tu­tion to be uniquely pro­gres­sive.

To sup­ple­ment these pro­vi­sions, the County Gov­ern­ments Act of 2012 has fur­ther elab­o­rated on the cen­tral­ity of cit­i­zen-gov­ern­ment part­ner­ship. Sec­tion 48 es­tab­lishes vil­lage units in each county as de­ter­mined by the county assem­bly or fur­ther de­volved units as a county may de­ter­mine.

Part VIII of the County Gov­ern­ments Act de­scribes how cit­i­zen par­tic­i­pa­tion should oc­cur. To fully par­tic­i­pate, ci­ti­zens must have “timely ac­cess to in­for­ma­tion, data, doc­u­ments, and other in­for­ma­tion rel­e­vant or re­lated to pol­icy for­mu­la­tion and im­ple­men­ta­tion.”

They must have rea­son­able ac­cess to all pro­cesses of how gov­ern­ment works so they can in­flu­ence and im­pact on them. Ci­ti­zens have the right to ap­peal gov­ern­ment de­ci­sions, or seek other re­dress or rem­edy from harm­ful gov­ern­ment ac­tion.

There should also be shared re­spon­si­bil­ity be­tween county gov­ern­ments and non-state ac­tors in de­ci­sion-mak­ing to en­sure a rea­son­able bal­ance. The County Gov­ern­ments Act al­lows “Pro­mo­tion of pub­lic-pri­vate part­ner­ships, such as joint com­mit­tees, tech­ni­cal teams and ci­ti­zens’ com­mis­sions to en­cour­age di­rect di­a­logue and con­certed ac­tion on sus­tain­able de­vel­op­ment.”

The county gov­ern­ment law fur­ther guar­an­tees ci­ti­zens’ right to pe­ti­tion and chal­lenge county gov­ern­ment on any mat­ter un­der its man­date. Ci­ti­zens can also de­mand the county gov­ern­ment to con­duct ref­er­en­dums on county laws and pe­ti­tions or on is­sues of plan­ning and in­vest­ment de­ci­sions af­fect­ing the county if 25 per cent of the reg­is­tered vot­ers de­mand so.

The Act es­tab­lishes the modal­i­ties and plat­forms for ci­ti­zens’ par­tic­i­pa­tion which in­clude “in­for­ma­tion com­mu­ni­ca­tion tech­nol­ogy-based plat­forms; town hall meet­ings; budget prepa­ra­tion and val­i­da­tion fo­rums; no­tice boards: an­nounc­ing jobs, ap­point­ments, pro­cure­ment, awards and other im­por­tant an­nounce­ments of pub­lic in­ter­est; de­vel­op­ment projects sites and es­tab­lish­ment of cit­i­zen fo­rums at county and de­cen­tralised units.”

Both civic ed­u­ca­tion and other forms of pub­lic com­mu­ni­ca­tion are elab­o­rated by the Act for pur­poses of catalysing and fa­cil­i­tat­ing the widest pos­si­ble cit­i­zen par­tic­i­pa­tion in gov­er­nance. County gov­ern­ments can es­tab­lish tele­vi­sion sta­tions,

ICT cen­tres, web­sites, com­mu­nity ra­dio sta­tions, pub­lic meet­ings and tra­di­tional me­dia.

Yet the ci­ti­zens are yet to ap­pre­ci­ate the light­house po­si­tion that the con­sti­tu­tion, at­ten­dant laws and de­vo­lu­tion have es­tab­lished for them. The po­lit­i­cal lead­ers have also to in­ter­nalise the dic­tates of the Con­sti­tu­tion es­pe­cially in re­la­tion to the cit­i­zen-state re­la­tion­ship within the con­text of con­sti­tu­tion­al­ism. Only when both cit­i­zen and leader have un­der­stood and prac­tised their roles as man­dated by the Con­sti­tu­tion and de­vo­lu­tion, can we pro­claim that the con­sti­tu­tion and the peo­ple have be­gun to flower.

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