Progress may be slow, but it is being made

I cannot believe we all missed it. Article 77 (2) states: Any appointed State officer shall not hold office in a political party. Therefore, the Prime Minister was right and Charles Nyachae, the Chairman of the Constitution Implementation Commission, was wrong. However, the Prime Minister was wrong in one respect. While Members of Parliament may hold offices in political parties, the Prime Minister, Cabinet Ministers, Assistant Ministers, Chairmen of Parliamentary Committees and civil servants cannot, as they are all 'appointed' in the context of Article 77. The President and Members of Parliament are elected, while the PM and Cabinet Ministers are appointed, as are Chairmen of the Parliamentary Committees and civil servants. Mr Odinga is free to retain his position in ODM so long as he relinquishes his post as PM, a position he was appointed to by the President under the terms of the National Accord and Reconciliation Act. Section 3 (1) of the Act states: There shall be a Prime Minister and two Deputy Prime Ministers appointed by the President in accordance with this section.

Mr Nyachae is frequently prone to hyperbole in the performance of his duties as Chairman of the CIC. In his unwarranted rant against politicians who hold offices in political parties, he went so far as to suggest that their continued role as office-bearers in their respective political parties was a threat to the implementation of the Constitution. He may be right, but it is important to remember that the implementation of the Constitution is not the exclusive preserve of politicians, whether in or out of government, but also of the citizens of Kenya. In one respect, though, he was right: the continued refusal of MPs to pay taxes on their earnings was wrong and it does undermine the implementation process. John Mbadi's (ODM, Gwassi) argument that the saving of the role of Ministers in the Transitional Clauses of Schedule Six of the Constitution was justification enough for the tax-evasion of MPs does not cut much water. Nor is Charity Ngilu's (NARC, Kitui Central) argument that MPs have committed significant proportions of their earnings to meeting the needs of some of the constituents. It is instructive that Ferdinand Waititu (PNU, Embakasi) rejected this argument, reminding his colleagues that many of them had other sources of income before they were elected to Parliament and that they should share in the same hardships other Kenyans undergo, whether it is in the cost of living or meeting their obligations as tax-payers.

Regardless of the progress being made in the implementation of the Constitution, things could be much worse. Kenya is unique in having ratified a new Constitution during a time of peace. Normally, Constitutions are changed during times of turmoil after which elections are immediately held. In Kenya, though, elections are scheduled to coincide with the ordinary timetable fixed under the former Constitution, hence the need for the Sixth Schedule and its Transitional Clauses. None of the key actors in the implementation of the Constitution has actively sought to sabotage the process; many are simply misguided about their rightful roles and thus, the confusion that reigns is nothing more than than the teething problems in coming to terms with the changed political climate. Going forward, it is possible to imagine that everyone involved in the process will adjust to the new realities and make the choices that maximise advantages for them and their causes.

Of course, there are actors who would like to have a favourable outcome at the expense of others' and they may employ questionable tactic and interpretations of the Constitution that favour them. These are the persons that the CIC should watch out for and take action against. It is not necessary that Mr Nyachae and his team keep an overly beady eye on the State Law Office, as the Attorney-General and his staff merely execute the will of the Government. The challenges that the future will bring, especially after the next general elections, are mind-boggling. For instance, the manner in which the 'budget' was presented this year bring the relationship of the Executive branch with the Legislative branch in stark relief. After the next elections, neither the President nor members of his Cabinet will be members of the Legislative branch, so how Bills are shepherded through Parliament will affect how the Executive executes government policies and enforces laws. The manner in which the Judiciary is managed will also become the subject of public focus, especially now that the various levels will enjoy a certain level of autonomy. The role of the Chief Justice in the leadership of the Judiciary will affect the administration of justice. Therefore, we should not just focus on the short-comings of the political class, they are the least of our problems despite their very high and over-inflated prominence.