In the course of his acceptance speech, President-elect Uhuru Kenyatta said servants of the new Kenya will be appointed on merit only.
Merit has not been a criterion during the greater part of the past 50 years of our nationhood. Instead, perceived or anticipated political dependability of a person by the government of the day has been the criterion.
If merit is applied in the appointment of public officers, including Cabinet and principal secretaries, then the country will – to use a football metaphor – play the ball with its “first eleven.”.
In his speech, Uhuru pledged to "work on behalf of all citizens regardless of political affiliation...honour the will of Kenyans and ensure my government protects their rights and acts without fear or favour in the interests of our nation."
In practice, he needs to appoint as departmental heads, the best men and women irrespective of their party affiliations. Examples abound.
George Osborne, the British Treasury Secretary in the Conservative government of Prime Minister David Cameron, took this principle a step further late last year when he appointed a Canadian to be the next governor of the Bank of England, the equivalent of the Central Bank of Kenya. Since he first became President in 2008, President Obama, a Democrat has, from time to time, appointed Republicans to his Cabinet.
Article 135 (2) (a) and (d) of the constitution provides that the functions of the President include nominating, and with approval of the National Assembly, appointing or dismissing Cabinet and Principal secretaries. This article addresses the principles which govern the appointment of Cabinet and principal secretaries.
If they did not start doing so on March 9 when they were declared duly elected by the IEBC, Uhuru and his deputy William Ruto must have already drawn up a list of people whom they will recommend for appointed cabinet secretaries.
As they mull over their choices, Kenyans will want to know the following. Firstly, what criteria will they use in making their decisions as to those who should serve in the Cabinet with them?
What are the new norms which the constitution has mandated should be used in place of those applicable under the former constitution where the President could appoint into the Cabinet any member of his or her party who had been elected?
Since in 2010 Kenyans adopted the American type of the executive system of government, what are the best practices as far as the appointment of Cabinet secretaries in concerned?
Secondly, why should the two use that criterion? To what extent are they allowed to nominate for appointment as Cabinet secretaries those who support their coalition politically?
Thirdly, does the country have institutions to enable them to apply those criteria? If we do not have such institutions, what are the short and long terms measures that ought to be taken to ensure that the criteria are applied correctly?
Article 130 of the constitution provides that the composition of the national executive shall reflect the regional and ethnic diversity of the people of Kenya.
However, there is an apparent conflict between Article 130 and Article 27 of the constitution. The latter requires that the principle of merit and human equality alone be applied the way it is applied in the Olympic games, and marking of KCPE and KCSE examinations.
When this is done, there is no question why in one race Kenyans sometimes sweep the gold, silver and bronze medals. If the organizers of the Olympic games used “regional diversity” test of the kind described in Article 130 of the constitution, then Kenya would not fare well at all!
In a democracy, citizens are presented by political parties with programs and potential implementers of those programs for decisions. The vote for the particular political party led by particular individuals translates into a vote for a certain vision of society.
The winning party is therefore entitled to act on the view that it is the best men and women who support that political party who should be given the mandate to implement that vision. Consequently it is the winning party which will supply most of the appointees to give effect to the vision.
Articles 12 and 27 of the constitution tie the hands of the President and Deputy President in making the nominations. Article 12 provides that every citizen is entitled to the rights, privileges and benefits of citizenship subject to the limits provided or permitted by the constitution.
Chapter 4 of the constitution spells the rights and freedoms enjoyment of which the constitution guarantees him or her. One is these is the right of every person to equal treatment, respect and concern in the organization of the state irrespective of one’s gender, ethnicity and political opinion.
Article 27(4) and (5) of the constitution is the one which writes the merit into our supreme law. It reads as follows:
27(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
(3) Women and men shall have the right to equal treatment including the right to equal opportunities in political, economic, cultural and social spheres.
(4) The state shall not discriminate directly or indirectly against any person any ground ,including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
Article 152(3) provides that a Cabinet secretary shall not be a member of parliament. He or she cannot either a member of the senate or National assembly. There is however no barrier to such nomination as long as one accepts that one will resign one’s seat if appointed.
John Kerry, the USA Secretary of State who replaced Hilary Clinton in the State department resigned his seat as senator from the state of Massachusetts to take up that assignment.
Although in political reality the president’s influence is greater, in law the President’s role in appointing the cabinet secretary under article 132(2) is merely to nominate persons for approval by the National Assembly. As Uhuru and Ruto are the heads of the Jubilee coalition, whoever they nominate will be approved by the members of their coalition in the National Assembly.
Where there is a rejection of a nominee the President must nominate another person. The approval or confirmation process of Parliament is designed to ensure that only competent persons are appointed to hold state offices.
In answering the four questions set out above regarding the criteria of nominating persons for appointment as Cabinet secretaries, they have to take into account the reconstructionist function of the constitution which is to nurture and protect the well being of the individual, the family, communities and the nation through a government based on the essential values of human rights, equality, freedom ,democracy social justice and rule of law. They also have to bear in the mind the specific provisions of the constitution.
Todays public institutions are a product of the past constitutional regimes which have shaped and influenced appointments in public service since 1895—from the colonial authoritarian order of the period between 1895 and 1963; the multiparty constitutional order of the period first between 1963 to 1969 and secondly 1992 to 2013 and the authoritarian constitutional order of the period between 1969 to 1991.
Between 1956 and 1963 Britain trained a public service to serve a democratic Kenya. However colonialism was based on a recognition and enforcement of distinctions based on race; not human equality.
The 1963 constitution was rooted in the principle of human equality but this principle was progressively weakened and abolished altogether in June 1982 when the country became a de jure one party state. When opposition politics started in 1966 politicization of the public service started.
The country’s reversion in 1969 to an authoritarian one party constitutional order deprived the public service of the capacity to promote merit in recruitment of public servants. Merit was gradually abandoned and replaced with political correctness;
The public service today is the product of these three constitutional orders and therefore in urgent need of transformation. Since August 27, 2010 when the new constitution cam into operation it is only one branch of the government— the judiciary which has embarked on transforming itself. The just concluded election has set the stage for the transformation of the legislative and the executive branches of the government.
Gibson Kamau Kuria is a senior counsel.