• In ordinary conversations, leaders dwell on the separation and independence of the three arms of government — the Executive, Parliament and the Judiciary.
• However, in political practice, this theory is invalid without the delineation of government from the state.
Last week, Chief Justice David Maraga came out guns blazing in a scathing attack on President Uhuru Kenyatta.
The criticisms were part of a series of outpouring frustrations by the Chief Justice since the historic invalidation of the 2017 presidential election.
At the time, President Kenyatta publicly declared his displeasure with the Judiciary and promised to revisit the matter at an opportune moment. Therefore, any reservations the President has on the Judiciary since then has been interpreted as his moment of "revisiting".
Maraga termed Uhuru's actions as deliberate affront on the independence of the Judiciary. These activities have strained the working environment between the Executive and the Judiciary. This has even escalated to protocol (mis) handling of the CJ
In fits of anger, Maraga has had choice words for his attack on the Executive officialdom. So frosty is the relationship that he missed last year’s Jamhuri Day celebrations.
Coming in background of the handshake, the Chief Justice has had to fight what is clearly a lone ranger battle, clearly isolated in a corner of despair. Not even Parliament has lent a listening ear, [although Senate Majority leader Samuel Poghisio and Chief Whip Irungu Kang'ata paid his a courtesy call this week].
The CJ has been reduced to ranting and risk being a broken record.
However, lost in this fight for supremacy battle is the constitutional relationship between the state and the government. The relationship is more often being discussed is the relationship between the Executive and the Judiciary as arms of government.
It is amazing that many Kenyans, including some senior government leaders, demonstrate hazy understanding of the constitutional arrangements of our state organs. Kenya’s political challenge is mainly in the delineation of the functions of the state and government.
The 1964 amendment proposed by Tom Mboya as Constitutional Affairs minister fused the functions of the state and government in the presidency. The opposition had been enticed to cross over to government and, therefore, it was by unanimity that the regional governments were also abolished.
Majimboism had been the cornerstone of Kadu party. With its leaders on Jomo Kenyatta’s side, Parliament established an imperial presidency. The mantra was national unity for development. This was the harbinger for presidential dictatorship that caused and continue to cause untold suffering to our politics. It has been at the heart of constitutional reform agenda ever since.
Fortune has never favoured Kenyans at epic moments of constitutional reviews. In 1982, political pluralism was obliterated through the infamous Section 2A. Soon after in 1986, the security of tenure for judicial officers was removed. Some of these claw back amendments were corrected in the 2010 Constitution. However, the elephant in the room remained the system of governance.
The 2010 Constitution affirmed Kenya as a republic under presidential democracy. The drafters borrowed heavily from the US laws but failed to engrain the federal aspect that has been the vanguard for checks and balances. It thus resulted in a situation such as having President Donald Trump as leader of Britain.
Our understanding of the leadership challenge is limited by how the theory of governance is conceptualised. A lot is talked about the three arms of government, but little, if any, is discussed about the state.
In ordinary conversations, leaders dwell on the separation and independence of the three arms of government — the Executive, Parliament and the Judiciary. In constitutional theory, these arms should provide checks and balances for each other.
DELINEATION OF GOVERNMENT FROM STATE
However, in political practice, this theory is invalid without the delineation of government from the state. While as concepts, the state is clearly distinct from the government, political practice has failed to give it life in Kenya. The distinction between government and state is only visible if the functions of both are clearly defined, separated and performed by different offices and persons.
The blurred situation in Kenya arises because the functions of the state and Executive are fused in one office — that of the President — and performed by one person. It is even worse when the Executive is invariably and interchangeably referred to as government.
If a governance system is to function well, then the head of state should be separate from the head of the executive as an arm of government. The state comprises the government, the people, and sovereignty.
The government is the Parliament, the Executive and the Judiciary. The Kenya Defence Forces are established for security of citizens and territorial integrity, thus sovereignty.
Therefore, the state superintends over all of the above, including government. The head of state logically has the duty to appoint the heads of these institutions viz speaker of Parliament, chief minister of Cabinet, head of the defence forces and heads of constitutional commissions.
The combination of the functions of state and Executive in one office thus manifests itself in the confusion seen in the relationship between the Executive and the Judiciary. It becomes embarrassing when the heads of these arms choose to perform their respective positions for expediency. The paralysis that ensues is recipe for governance chaos as is now witnessed in the stalled appointment of the 41 judges.
Uhuru is both head of state and Executive. As the head of state, he commands authority over Parliament, the Judiciary and KDF. However, as head of the Executive, he leads the Cabinet and is equal and at par with the speaker, Chief Justice and Chief of the Defence Forces.
He performs the function of appointing judges as head of state not as head of the Executive. As head of state he is not bound by the recommendations of the Judicial Service Commission. But as head the executive he has absolutely no role in the JSC.
Maraga, therefore, must have missed to appreciate the role of President Kenyatta in the appointments as being that of head of state and not Executive. The President might have also chosen to discharge his state duties in retaliation against Maraga’s perceived transgression against him as head of the Executive.
The impending referendum will only be useful to Kenyans if it will cure the perennial curse of imperial presidency. It is the institution that is responsible for the cancer of winner-take-all political contest. Any other constitutional amendments without separating the performance of state functions from those of the Executive will amount to more of the same.
The state and the Executive should be led different persons to clear any ambiguity of responsibility. The discharge of duties and pecking order will then be easily visible and not subject to magnanimity of office holders.