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November 18, 2018

The vision of Chapter Six of the 2010 Constitution

Devolution CS Anne Waiguru.Photo/File
Devolution CS Anne Waiguru.Photo/File

Some parts of the 2010 Constitution have inspired Kenyans more than others: particularly Article 1 (sovereignty of the people), Article 10 (values and principles), Chapter Four (the Bill of Rights)—and Chapter Six.

Leadership and Integrity” is the title of that Chapter, and the enthusiasm for it is an indicator of how far Kenyans have felt deprived of leaders with integrity. Someone even proposed setting up an NGO called “Chapter Six”. The necessity of integrity is emphasised daily as news after news breaks about corruption among “leaders” at both national and county levels. A wave of anger—and despair—has spread over the country. This Katiba Corner piece is the first in an occasional series assessing the strengths and weaknesses of Chapter Six, and what its impact has been and might yet be.

Much of this discussion is about “integrity”, but the Chapter also has some interesting things to say about leadership. Especially when you think of the puffed-up self-importance of our so called “leaders” (often our self-called leaders). Usually we try to avoid quoting the Constitution at any length, but the very first part of Chapter Six is so straightforward that it cries out to be quoted:

73. (1) Authority assigned to a State officer—

(a) is a public trust to be exercised in a manner that—

(i) is consistent with the purposes and objects of this Constitution;

(ii) demonstrates respect for the people;

(iii) brings honour to the nation and dignity to the office; and

(iv) promotes public confidence in the integrity of the office; and

(b) vests in the State officer the responsibility to serve the people, rather than the power to rule them.

Look again at those last few words. The Constitution gives authority to “State Officers” (which means mainly elected representatives, cabinet secretaries and their county equivalents, judges, magistrates and members of commissions, as well as independent officers, the Auditor General and the Director of Public Prosecutions). In fact it is the people that confer that authority, through the Constitution. And the purpose of conferring that authority is that those officers will serve the people, not the people serve them.

Perhaps “leadership” is not the right word. “Service” is much better. The idea that “the leader of a people is their servant” is found in all great religions, including Islam, Christianity and Hinduism, though all too often more in the rhetoric than in the practice. And the same might be said of Kenya’s leaders. Underlining this philosophy, Chapter Six requires state officers to embark upon their duties by swearing an oath or making a solemn affirmation. For example, the incoming President must swear (or affirm) “that I will truly and diligently serve the people and the Republic of Kenya”. The first element of every oath is to serve the people.

As well as commitment to service of the people, the vision of the Constitution is of state officers who are competent, impartial in their decision making, honest in every respect, not influenced by favouritism or corrupt motives, selfless, disciplined and accountable. Since they are also bound by the values of the Constitution in Article 10, we can add that they must be patriotic, committed to human rights including dignity and equality, and committed to social justice, inclusiveness, protection of the marginalised, good governance, transparency (openness) and public participation.

Chapter Six draws a distinction between state officers and public officers. All the duties it imposes are for state officers. But the chapter says that Parliament must pass law applying the principles to public officers also. Without going into complexities, we can say that public officers are —apart from state officers—those who are in the public service and paid from public funds. We should also note that Article 232 of the Constitution repeats the broad values of the public service (adding efficient, effective and economic use of resources). Public service is defined to cover all officers and employees of the state including the police and state corporations.

To get a full overall picture of Chapter Six, we should note that it provides some more specific rules and principles. Particularly important is the idea of conflict of interest. In fact almost the whole chapter could be embraced within that idea: that a state officer (or a public officer) must not allow personal interest to conflict with his or her duty to the people and the country.

A specific sort of risk of conflict of interest is intended to be avoided by preventing foreigners serving as state officers, even if they are also Kenyan citizens. This does not apply to judges or members of commissions (because it was thought that it might be useful to be able to have foreigners serving on commissions, as we did with the Committee of Experts on the Constitution, and the other bodies formed after the 2007-8 post-election violence). Again it is not uncommon for countries to have foreign judges. Incidentally, to be a candidate for president, a person must be a citizen by birth. Basically this means someone at least one of whose parents was a citizen. Oddly enough this does not apply to the presidential candidate’s running mate (who might in some circumstances become president).

There are some specific rules about financial probity (a word that means having strong moral principles and complete honesty), and about behaving so carefully that there is no risk of even appearing not to be honest.

Chapter Six envisages a commission—the Ethics and Anti-Corruption Commission—to enforce the provisions of the Chapter, and other law setting up procedures and prescribing penalties. The Commission, of course, exists; it was created by the Ethics and Anti-Corruption Commission Act, 2011, the latest in quite a long line of anti-corruption commissions. And the main law is the Leadership and Integrity Act. But the 2003 Public Officers Ethics Act still applies to some extent. These between them create a Code of Ethics for state and public officers, or rather several codes. There is also the Public Service (Values and Principles) Act 2015, particularly concerned with Article 232 of the Constitution. In fact a great deal of the Constitution is an elaboration of Chapter Six, including in chapters on the legislature, executive and the judiciary. This reiteration owed a great deal to the anxiety of Kenyans about whether we would ever be able to put corruption, and the abuse of power generally, behind us.

Later articles in this series will try to assess how far Chapter Six(and this plethora of laws) has actually been able to improve the integrity of those in important offices of state, and the public service. We shall explore the differences between the appointed and elected officers and whether it make a difference that Article 73 of the Constitution speaks of “selection on the basis of personal integrity, competence and suitability” but of “election in free and fair elections”. We shall particularly be looking at the responses of the courts to integrity-based cases.

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