NKONGE: Public interest, populism and due process

The rule of law creates a framework of administrative practices upon which people can make claims.

In Summary
  • In Kenya, politics is always accompanied by showmanship.
  • However, showmanship must be mitigated by an understanding that the words matter and the statements must be within the bounds of law.
Supreme Court of Kenya judges.
PUBLIC INTEREST: Supreme Court of Kenya judges.
Image: STAR

In the 2017 Raila Odinga presidential election petition, the Supreme Court observed that "the greatness of a nation lies in its fidelity to the Constitution and strict adherence to the rule of law... The rule of law ensures that society is governed on the basis of rules and not the might of force. It provides a framework for orderly and objective relationships between citizens in a country."

In other words, adhering to the rule of law creates a consistent framework of administrative practices upon which people can make claims or hold legitimate expectations.

It also creates expectations that persons in similar circumstances will be treated the same way by public officers. And, most importantly, governing through rules prevents those in power from using that power as ‘force’, but instead using it to develop effective law and policy.

Being governed by rules, not force, also means that people be able to take statements made by politicians seriously – we should expect that politicians mean what they say, especially the president, his deputy, governors, Cabinet secretaries and principal secretaries, who have power under the law to make policy and issue directives.

In Kenya, politics is always accompanied by showmanship. However, showmanship must be mitigated by an understanding that the words matter and the statements must be within the bounds of law.

A politician’s statement foreshadows administrative action. Administrative action, in turn, is analysed not only through the decisions made but also the process by which the decisions were arrived at. It is not just about doing the right thing, but doing the right thing in the right way.

In law, the end does not justify the means. The law ensure that actions are taken because they are both consistent with the rule of law and in the best interests of the nation, not merely popular, or because they are consistent with one group or person’s interests.

However, public officers are increasingly making their intentions or decisions known by fiat (often called ‘roadside declarations’; a practice we hoped had been cured by the constitution).

For instance, the constitution provides that a decision of the president "shall be in writing and shall bear the seal and signature of the President". This I argue, should hold true of decisions by other state officials. It is therefore concerning when state officials make statements in public to the effect "I direct so and so to do this …" especially when directed to institutions that are meant to be independent.

It is also problematic if, for example, Cabinet secretaries issue such declarations to the ministries they head. This creates a perception that the directives are individual decisions made outside the internal decision-making processes and without the ministries’ technical expertise.

These kinds of pronouncements fly in the face of the decisional autonomy of independent institutions. They also erode public confidence in the institutions. They diminish expectations that administrative decisions will be informed by the expertise of the ministry, and not by whim, or the desire for political leverage. And they reduce people’s expectation that a government will adhere to the rule of law.

The Supreme Court has noted, "independence is a shield against influence or interference from external forces. … such forces are the government, political interests, and commercial interests from non-state actors . The body in question must be seen to be carrying out its mandate without orders, instructions, or any other intrusions from those forces."

The Supreme Court’s statement is grounded in the Constitution, which mandates that any authority assigned to a state officer must be exercised in a manner that promotes public confidence in the integrity of their public office.

This means that state officers are required to promote not only actual independence but the perception of independence. The Supreme Court has noted "the … several commissions and independent offices alongside the Judicial Branch, … are the custodians of the fundamental ingredients of democracy, such as rule of law, integrity, transparency, human rights, and public participation."

"[They] are [also] intended to serve as people’s watchdogs and, to perform this role effectively, they must operate without improper influences, fear or favour: this, indeed, is the purpose of the independence clause."

The duty to operate without improper influence applies to all government personnel, regardless of their station or perceived importance.

Public officers may issue far-reaching directives without providing adequate and reasonable notice. Closing bars in urban residential areas is the most recent example.

The government has been issuing licences to these establishments for years and, thus, encouraged substantial investment in them. Without accounting for the past practice and its consequences, their abrupt closure violates fair administrative action.

These directives also hurt the state through reduced tax revenue, money spent on litigation, and money paid to businesses as compensation for the illegal actions. The recent announcement of abolition of boarding schools for certain grades in December when schools are set to reopen at the end of January 2023 is another glaring example. These kinds of directives create panic, confusion and affect livelihoods. Following principles of fair administrative action can avoid this

Last month, MPs threatened to strike over the ‘delayed disbursement’ of the National Government Constituency Development Fund . The legislators ignored the fundamental question regarding whether the NG-CDF is legal or constitutional, but argued that it is very noble and popular among the people, and that the objectives it seeks to achieve contribute to social development at local levels.

That may well be true, although, curiously, only 39 per cent of respondents to a long running survey on the National Assembly’s website requesting views on whether the CDF has positively impacted one’s community have said 'Yes'. However, even if this survey had yielded a 100 per cent 'Yes' response, implementation of the NG-CDF in its current form would still be unconstitutional.

Despite politicians’ protestations, abiding by the law does not prevent them from executing good policy.

The Supreme Court has allayed fears of the loss of the benefits of NG-CDF by providing a formula that does not need constitutional amendment. It suggested that the funds be converted into conditional grants to county governments.

The popularity of an initiative or idea by itself is not sufficient if it does not meet constitutional muster. Of course, this scheme would presumably not involve MPs – which is what they want.

The Financial Inclusion Fund (the Hustler Fund) is another example. According to President William Ruto, and at the time of this article, about Sh7.5 billion had been disbursed in loans to about 15 million Kenyans. Apart from questions of the sources of the current fund, there are other questions on procedures and processes.

In conclusion, due process protects citizens’ interests against arbitrary administrative actions and creates predictability in the relationships between the governors and the governed irrespective of the occupiers of a particular public office. It also creates good, effective, implementable policy, which can improve people’s lives.

The author is the executive director of Katiba Institute

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