Wednesday, August 16, 2017

We must disinfect our constitutional fabric

Article 231(3) of the Constitution states that,
(3) The Central Bank of Kenya shall not be under the direction or control of any person or authority in the exercise of its powers or in the performance of its functions.
Article 245(4) states that,
(4) The Cabinet secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector-General with respect to—
(a) the investigation of any particular offence or offences;
(b) the enforcement of the law against any particular person or persons; or
(c) the employment, assignment, promotion, suspension or dismissal of any member of the National Police Service.
(Emphasis mine)
(Keep in mind that according to Article 243(2) the National Police Service consists of the Kenya Police Service and the Administration Police Service.)

Most of you are now familiar with Article 47 in the Bill of Rights which states, in clauses (1) and (2) that,
47. (1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
Few of you will be familiar with the judgment of the High Court in Petition No. 495 of 2015 between the Kenya Human Rights Commission (Petitioner) and the Non-Governmental Organisations Co-ordination Board (Respondent) which stated, in paragraph 70, that,
70. I come to the conclusion that the decision by the Respondent to commence or effect the process of deregistering the Petitioner as a non-governmental organisations under the Non-Governmental Organisations Co-ordination Act, 1990 was riddled with impropriety and procedural deficiencies contrary to Articles 47 and 50(1) of the Constitution. The same position applies to the decision to order or direct the freezing of the Petitioner's bank accounts. (Emphases mine)
In recent days, the executive director of the NGO Co-ordination Board has written to the chairperson of the Kenya Human Rights Commission levelling the same charges as it had in 2015 and attempting to initiate the same administrative measures it had unsuccessfully attempted to initiate in 2015. In a fresh gambit, and against the African Center for Open Governance, it has written to the Director of Criminal Investigations, which is an organ of the Kenya Police Service, among other things, to,
"urge your office to move with speed to shut down the operations of this organisation and further arrest the directors and members of AFRICOG, for contravening the foregoing provision; and with a view to arraigning and prosecuting them in a competent court of law".
(It doesn't seem to have occurred to the Board's executive director that while the police can surely arrest suspected offenders, the role of prosecuting the suspects is entirely in the hands of the Director of Public Prosecutions; police prosecutors were phased out by virtue of the operation of Article 157(6), (9) and (10).)

It seems that the NGO Co-ordination Board's executive director is determined to make himself a pestilential presence in the High Court for having his persistently unconstitutional directives challenged by the targets of his administrative wrath. If his exercise and, to my view abuse, of administrative power aren't grounds for challenging his continued occupation of his office as offensive to the national values and principles of governance enshrined in Article 10 of the Constitution, I don't know what are.

It is a pity that the High Court didn't remind the executive director that he had no authority to direct the National Police or the Central Bank to do anything; independence means that the executive director's "advice" should have been couched in the weaselly form of a complaint, which he has every right to do if it suspects that an offence is being committed. But that he had the gall to repeat the errors of 2015 in regards to the Kenya Human Rights Commission and the African Center for Open Governance as if he hadn't a constitutional care in the world raises grave doubts as to his continued constitutional suitability to hold public office.

We have no choice now but to do the hard work of monitoring the behaviour of public officers, especially when they purport to wield powers they do not posses or issue directives that they cannot. Even if few of us will have the resources to challenge constitutionally errant public officers in courts of law, we must do our part in exposing the constitutional charlatans purveying their illicit transactions in public offices. Sometimes, though not always, sunlight is sufficient disinfectant for the occasional pest in our constitutional fabric.

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