Whistling Dixie in the wind

We made a bargain with each other as adult voters. That bargain is called the Constitution of Kenya. In that bargain we decided how big a government we wanted. In making the bargain, we had a binary choice: promulgate a new constitution or carry on under an older, much-amended and imperfect one. On the 27th August, 2010 we replaced one constitutional order with a new one. What we didn't replace was the corrupted and corruptive politics of Kenya; we devolved it and the problems it engenders.

The Consolidated Fund is, more or less, the sum total of all the monies that pass through the innards of the Government of Kenya. That is all the taxes we pay, direct and otherwise, all the money borrowed by the Government, all the grants, donations and gifts to the Government, all the proceeds from the disposal of assets or the sale of licences and permits, and a million other sources of money. The Consolidated Fund, bar some constitutional amendment, is here to stay. The sources of money of the Consolidated Fund are here to stay. Taxes, in their varied forms, will continue to form the largest proportion of what forms the Consolidated Fund.

Even before we talk of a public service, the following State officers must be paid: the President, Deputy President, the members of the Cabinet, the members of Parliament, Governors, Deputy Governors, the members of county assemblies, judges and magistrates, the Attorney-General, the Director of Public Prosecutions, the Chief of Defence Forces, each service commander of the Kenya Defence Forces, the Director-General of the National Intelligence Service, the Inspector-General and the Deputy Inspectors-General of the National Police Service, the Controller of Budget, the Auditor-General, the members of the Ethics and Anti-corruption Commission, the Kenya National Commission on Human Rights, the National Gender and Equality Commission, the National Police Service Commission, the Teachers Service Commission, the National Land Commission, the Public Service Commission, the Judicial Service Commission, the Independent Electoral and Boundaries Commission, the Commission on Revenue Allocation and the Salaries and Remuneration Commission.

The existence of these offices is part of the constitutional bargain we made with each other and the remuneration and benefits due to those holding these offices is a part of that bargain too. The Salaries and Remuneration Commission is charged with determining the remuneration and benefits of these State officers, another constitutional bargain we made with each other. The public service that works for, works with or otherwise supports these State officers reflects the thousands of things that we ask our government to do. After 2010, no one has a valid argument that State officers and public servants have stolen power that is not rightfully theirs; if anyone wishes to challenge the legitimacy of a power that is being exercised by the Government, they have the courts of law to do so. After 2010, arguments about access or knowledge of the law or ability of litigants are no longer valid.

The most significant State offices are those held by members of the national executive: the President, the Deputy President and the Cabinet. These offices are responsible for establishing tax policy and fiscal policy. The choice of President and Deputy President is directly related to the choice of members of the Cabinet and, in turn, the kinds of long term policies that hit us where it hurts most: the wallet. As a nation, we failed to interrogate the fiscal policies of the candidates in 2013; we are now paying the price as the cost of living gets out of hand because of the malign effects of our growing national debt. While to many the size of the national debt is morally indefensible, it is not unconstitutional: the power to incur these debts is given to the Government and it is accounted for by the Government in accordance with our constitutional bargain.

Some have called for "shrinking the size of government" by which they mean that the number of elected State officers must be reduced as well as the overall size of the public service. What they have failed to do is to advance an argument that is persuasive enough for those who have no problem with the national executive being involved in road construction, milk processing, sugar milling, armaments manufacturing, drugs' distribution, higher education or medical equipment leasing. Millions of Kenyans have no problem with the manner in which taxes are employed. Those that do can be separated into two camps: those who oppose taxation as an unconstitutional usurpation of private property and those who simply want to see as little of it wasted, misappropriated, misspent or stolen. The former are fond of wailing about the assault on their liberties without offering practical solutions that will help them attain their constitutional nirvana. They are constitutional nihilists of the worst kind.

We have problems in Kenya. To even attempt to solve them, we must accept a few things: we are a constitutional republic in which State offices, State officers and their powers are defined; these powers have been exercised for both good and ill; if we are to make things better for all, we must re-examine how State power is used, and review our constitutional arrangements to reflect that re-examination. Anything else is whistling Dixie in the wind.