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December 10, 2018

KATIBA: 'Because I say so': Presidential directives and the Constitution

President Uhuru Kenyatta commissions officers during the Officer Cadets' Commissioning at the Kenya Military Academy, Lanet, Nakuru County.Photo Pscu
President Uhuru Kenyatta commissions officers during the Officer Cadets' Commissioning at the Kenya Military Academy, Lanet, Nakuru County.Photo Pscu

President John Magafuli does it, President Yoweri Museveni does it, and President Donald Trump does it as well.

One writer described Trump’s action: “During a conversation about the possibility of drilling for oil on the Indian reservations the President said, “just do it.” Tribal leaders responded by reminding the president that numerous environmental regulations prohibit them from drilling for the oil. The president responded by saying, “But now it’s me. The government’s different now. Obama’s gone, and we’re doing things differently here.”

And President Uhuru Kenyatta does it constantly. A Google search for “President directs” or “Uhuru directs” comes up with endless examples.

Monday’s papers included some particularly ripe examples: the Nation reported that the President “directed that scouts [members of the Scouts Association] be accorded priority in all government recruitment”. And, “I direct the Teachers’ Service Commission to deploy two teachers to each county to coordinate and enhance scouting programmes in schools”.

Other examples have included directions that church schools taken over by government in 1953 be returned within a week, and that electricity bills be reduced within a month to accommodate SMEs. The Interior Cabinet Secretary and the Inspector General of Police were told to produce, within 30 days, a strategy with “clear and practical recommendations” to improve effectiveness in the police.

On corruption, the President directed that all state procurement personnel undergo lie-detector tests, while the Ethics and Anti-Corruption Commission must enact regulations to enable investigative agencies to access wealth declarations of public officers.

Miscellaneous directions included to the National Transport and Safety Authority to leave manning of Kenyan roads to traffic police; that Ministry procurement officers purchase locally made products; that special KCPE examinations be set for students unable to sit the regular exam; and County Commissioners prepare a report with accurate data on all HIV positive school children.

In the USA many presidential directives are in written “Executive Orders” published in the Federal Register (the equivalent of the Kenya Gazette) and available online. President Trump produced 56 last year and 31 so far this. His “Just do it” directive was not in writing. Most of Uhuru’s are not written (the HIV directive was in a letter to County Commissioners). Under the Constitution Cabinet decisions must be in writing. Oral directives by the President are probably quite lacking in legal force.

 

US DEBATE ON EXECUTIVE ORDERS

Our government system is broadly based on that of the USA. There has always been some dispute about the scope of the US presidential power to issue executive orders. And most commentators would agree that the President has no power to make law contradicting that made by Congress.

The Constitution of Kenya is slightly differently phrased from that of the USA. Our President “exercises the executive authority of the Republic”, but “with the assistance of the Deputy President and Cabinet Secretaries”. It is a more collective task than in the US.  Nor should we forget that the people of Kenya are supposed to participate in decision making.

 

THE WISDOM OF UHURU’S PRONOUNCEMENTS

Far too many of directives fall into one (or more) of the following categories, the unconstitutional, the illegal, the unwise, or the redundant.

 By the redundant we mean directives essentially saying, “enforce the law”. Directives to the police to deal with corruption rightly elicit ridicule on social media: Kenyans know perfectly well that the police are among the most corrupt agencies, and to expect them to deal with others’ corruption is unrealistic. And if they are capable, they are already trying.

By the unwise, we are thinking of directives that have simply not had the careful thinking through they require. That about returning church schools is an example. As Father Gabriel Dolan wrote in the Standard, “The roles of religion and the state will be severely altered and challenged if this is implemented and it is inevitable that a variety of groups and opinions will challenge this declaration especially as it is not consistent with the contents of the current Education Acts.”

But policies require evidence, debate, consideration and they are not to be made by the President alone. President has a Cabinet. It makes ultimate policy decisions that are often then presented to Parliament, and that will very often need support in law, which must be passed by Parliament, not by the President alone.

It is also surely unwise to announce decisions in public that ought to be the result of discussion with those people appointed to deal with the particular topic, and those with experience in decisions making: the Cabinet Secretaries and the civil servants of the relevant ministry. To be fair sometimes the President probably has discussed the issue with these people. But this “Because I say so” approach undermines the positions of the Cabinet and the public service. It does seem that the President has some difficulties in motivating his Cabinet members. Maybe it is partly his own fault.

Another aspect of this approach is that it smacks too much of the “L’État c’est moi” – “the State is Me!” associated with the French King Louis the Fourteenth (rather than President Moi!). President Kibaki used to speak of the Imperial Presidency­ – the tendency to fancy oneself a sort of elected monarch, and not a modern one. It is also something we see in Kenyan politics far too generally: the obsession with self.

 

UNCONSTITUTIONALITY AND ILLEGALITY

When the President says “we shall give more money” to a certain department, or worse “Give more money”, this tends to ignore the fact that money is voted by Parliament, not by the President.  The President cannot change the law by roadside declaration, but some “directions” do contradict it, as the church school direction goes against Education Act provisions.

Other serious thumbing of the presidential nose at the constitution and the law include trying to tell bodies intended to be independent what they should do. Telling the police, or the DPP, what to do with particular alleged criminals is one example.

The Court of Appeal commented in one case, “Well meaning as the directive may have been, it gave the impression, and we believe any reasonable person would have perceived it as such, that the President was directing the EACC on how and within what period to discharge its mandate”. And that was unconstitutional.

Like everyone else, the President must respect human rights. The High Court held that the President’s HIV “directive” violated the right to privacy of HIV positive children and their guardians, and the principle (also part of the Bill of Rights in the Constitution) of the best interests of the child. The judge said, “The fight against HIV and Aids requires strategic and informed decisions by the State and all stakeholders involved in it.  Continuous dialogue would therefore be necessary but all must act within the framework of the Constitution and relevant statutes.”

That recent directive about Scouts must offend in several ways. It is trying to tell the military how to do their job. It smacks of ad hoc-ery, and a desire to please, but not of careful thought and consultation. It is probably inviting the military and police to discriminate against non-Scouts, and the Teachers’ Service Commission to favour a particular organisation, in a way that violates the equality and non-discrimination provisions of the Constitution.

 

SO WHAT DO WE MAKE OF OUR PRESIDENT?

Either Uhuru does not understand the Constitution or has no respect for it. He ignores constitutional roles, and constitutional values and principles. He ignores the sovereignty of the people, and their rights to participation in decisions that affect them, as well as the responsibilities of government institutions and officers.

He seems, again like Trump, to prefer off the cuff, campaigning talk to responsible policy making and serious governing. He weakens institutions by this self-centred posturing.

We desperately needed the first president under the new constitution, as Uhuru effectively is, to be committed to its values, procedures and institutions. He has not turned out to be that president.

 

 

 

 

 

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