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Citizen Weekly

Monday, 13 April 2015


President Uhuru Kenyatta’s administration has steadily gained a foothold in key constitutional offices two years after he took office, if recent legislation and actions are anything to go by.
Made with an eye on the 2017 General Election, the decisions have left some of the senior Kibaki-era appointees unsettled as President Kenyatta stamps his mark on government.
“Regime consolidation is an important aspect of self-preservation, and Uhuru (Kenyatta) has been no exception. In Western governments, the elected leaders appoint people according to their ideological persuasion because such appointees tend to give outcomes the regime desires,” political analyst Martin Oloo told the Sunday Nation.
However State House spokesman Manoah Esipisu dismissed the claims saying: “As far as we are concerned independent institutions are operating as independent as they would in any democratic society. No one tells the Inspector-General of Police what to do. IEBC is carrying out its functions independently as all other independent offices.
EACC has had challenges and even the President alluded to that in his State of the Nation address to Parliament and some of those challenges have come from within the commission itself.
However, Kenyans need to remember that no institution operates in a vacuum. Obviously the general perception is that when things are not working in a certain agency or department then it is the executive that is meddling. The answer is no.”
The most overt of such actions came when President Kenyatta acrimoniously pushed through Parliament enactment of the Security Laws (Amendment) Act, 2014. With the Act in place, he totally diminished the independence of the National Police Service Commission (NPSC).
The Act, sections of which were later expunged by the High Court, now grants the President powers to appoint and fire the Inspector-General of Police, making the holder of the office subservient to the Presidency.
The weakening of the Inspector-General of Police’s independence became clear after the recent Garissa University College terrorist attack in which 148 people were killed by the al-Shabaab.
In his first national address after the incident, the President directed the Inspector-General of Police Joseph Boinnet to speedily ensure the 10,000 police recruits whose enrolment was pending due to a court case to report for training.
“I take full responsibility for this directive. We have suffered unnecessarily due to shortage of security personnel. Kenya badly needs additional officers, and I will not keep the nation waiting,” he said.
Article 245 (4c) of the Constitution provides that no person can give a direction to the Inspector-General of Police with respect to “employment, assignment, promotion, suspension or dismissal of any member of the National Police Service.”
Furthermore, the human resource function is the domain of NPSC under Johnstone Kavuludi, which has now been rendered toothless.
The Independent Police Oversight Authority (IPOA), which provides for civilian oversight of the police, has since warned that it will cite Mr Boinnet for contempt of court if he goes ahead to implement the directive. Similarly, the Judicial Service Commission (JSC) also faulted the President’s directive and asked Mr Kenyatta to respect the dignity of the courts. 
For Mr Oloo, the independent offices as the Constitution provides only remain so when the people in those positions share the same ideology with the head of the executive.
“Kenyans are a long way from experiencing the benefits of these so-called independent offices. In reality, they buckle under pressure. If not, they are removed,” said Mr Oloo.
It is therefore not surprising that where the executive branch cannot change the people at the helm of the commissions, they use coercion or cause disharmony as a pretext to come up with tribunals to remove the individuals, according to Mr Oloo.
That could explain why at the Ethics and Anti-Corruption Commission (EACC), the executive’s hidden hand has been blamed for the internal feuds at the commission.
EACC commissioner Irene Keino recently accused President Kenyatta’s confidantes, one of who has been identified as Jomo Gecaga, the President’s private secretary, of coercing her to resign in a meeting.
“I wish to state that there is a brazen attempt to force my resignation and disbandment of the commission by a clique, which is a clear subversion of the Constitution,” she said.
Ms Keino said she had been asked to resign from the commission and be given a new job as deputy ambassador to Brazil. One of the commissioners, Prof Jane Onsongo, meanwhile, bowed to pressure and left.
EACC chairman Mumo Matemu is also said to have been approached to resign but demanded a lot more than State House was willing to give, which explains the reason he was not at the meeting with Ms Keino, Prof Onsongo and the president’s confidantes.
But it’s not over yet for Mr Matemu and Ms Keino according to a source familiar with State House’s plans.
“State House is still leaning on Matemu’s and Keino’s resignation from the commission so that they can appoint a new team that will dance to their tune,” the official told the Sunday Nation.
That the President’s office is keen on filling the constitutional commissions and independent offices with individuals that will do their bidding also became apparent when President Kenyatta nominated former executive director of his party TNA Winnie Guchu and Kipng’etich arap Korir in place of Prof Christine Mango whose term had expired and Rev Samuel Kobia at JSC.
The formal appointment of the two is all that is left after Parliament approved their appointments.
Rev Kobia, Sunday Nation understands, was prevailed upon by State House to resign despite the fact that he still had almost two years left on his term at the JSC.
Meanwhile, Sunday Nation has also confirmed that there are plans to have another JSC member Emily Ominde leave, either through resignation or by not defending her position when her term expires in about two years. Ms Ominde represents magistrates on the commission, and hers is an elective position, which means the presidency would have to somehow persuade magistrates to vote in a preferred candidate.
“There is a pattern to take over and control all key commissions,” the official added.
That pattern started with the control of Parliament, which has become the Presidency’s “toy” based on tyranny of numbers and outright coercion of MPs.
The pattern of consolidating power has also extended to muzzling the Auditor-General Edward Ouko through the Public Audit Bill.
The Bill that was passed by the National Assembly ties the hands of the Auditor-General on the information he can include in his reports under the pretext of national security. This is supposedly to avoid another public disclosure such as the alleged illegal transfer of Sh2.4 billion from the Interior ministry less than two months before the 2013 General Election.
Meanwhile, Parliament has yet to enact legislation to give full effect to the Office of the Controller of Budget who oversees the implementation of the budgets of the national and county governments by authorising withdrawals from public funds. As such, the Controller of Budget Agnes Odhiambo continues to operate as an appendage of the National Treasury.
Secretary to the Cabinet Francis Kimemia and Defence Principal Secretary Mutea Iringo have been the casualties as President Kenyatta seeks to rid himself of the excesses from the Kibaki era. Both Kimemia and Iringo were recently suspended after they were mentioned in the EACC dossier of individuals under investigation for alleged corruption.
Other carryovers from the Kibaki era who have lost their positions altogether include ex-spy chief Michael Gichangi who was replaced by Maj-Gen (rtd) Philip Kameru and former police chief David Kimaiyo who was replaced by Mr Joseph Boinnet.
But Esipisu said: “All Kenyans have a right to serve in government and there are some many, probably in their thousands, that served in the previous regimes. One or two changes cannot be used to generalise that the Jubilee Government is shedding off Kibaki-era appointees.”  
Similarly, for him to have a say in the Civil Service, President Kenyatta appointed Joseph Kinyua to a non-existent position of the head of public service despite the Constitution creating an independent Public Service Commission (PSC).
And to oversee the functions of the non-governmental organisations, a government operative Fazul Mohammed Yusuf was appointed the executive director of the NGO Board.