Remarks · 17 January 2023
17th JANUARY 2023
I welcome you all to this highly important gathering. Thank you for making time to be here; I appreciate the goodwill you have shown and I do not take it for granted.
We have all come here to participate in a long overdue meeting, aimed at inaugurating a new paradigm of collective deliberation, consultation and collaboration aimed at unlocking the full promise of our constitutional dispensation. This way, we afford ourselves the opportunity to do much more to guarantee greater freedom, entrench a culture of human rights, deepen democracy and establish a new standard of the rule of law, transparency and accountability.
The constitution has mandated us to perform different, but no less special task to promote a sound environment for the attainment of the greater well-being and the flourishing of full human potential of each one of our people.
In the dozen years that have passed since the promulgation of the constitution, there can be no doubt about the profound potential of this majestic charter to transform Kenya into a modern progressive democracy enjoying shared prosperity. The constitution focuses on the freedom, capability and well-being of citizens to promote strong, healthy families which make up robust, industrious communities. In turn, communities constitute a diverse, cohesive, stable, peaceful and prosperous nation.
The constitution recognizes the promotion and actualization of the rights and fundamental freedoms set out in the Bill of Rights as the demonstration as well as intent of its institutional dispensation. The constitution severely restricts the range of conditions under which these rights and freedoms may be limited and forecloses any possibility of the state avoiding its obligation to observe, respect, protect, promote and fulfil these rights and fundamental freedoms.
All the functions performed by the state in the name of the people affect their experience of at least one right and fundamental freedom. It is thus possible to categorise state functions in terms of the rights and freedoms directly affected by them. The organs of government, together with their constituent mandates and functions, as well as commissions and independent offices, are explicitly and implicitly directed towards the observance and fulfilment of certain constitutional obligations connected with corresponding rights and freedoms.
The national values and principles of governance set out in Article 10 are both the means as well as the ends of the actualisation of the constitutional dispensation and implementation of rights and fundamental freedoms.
We have classified our ministries, departments and agencies into thematic clusters for effective coordination of delivery, and for better evaluation of performance. The thematic clusters are based on the pillars of our Plan for the rapid socioeconomic transformation of our country to achieve shared prosperity from the bottom going up. A number of functions can be seen to be cross-cutting, and may be understood to be, principally enablers.
In any event, the pillars of our transformational agenda converge with the Economic and Social Rights in Art.
We are, on a continuous basis, mindful of the constitutional imperatives tied to our work. They inform our intentions as well as our methods.
I realise with much humility that to perform these functions, discharge our commitments and actualize the foregoing obligations, I am vested with the constitutional authority to constitute certain offices and to appoint state and public officers. I am also authorized to mobilise resources and allocate them for expenditure through the budget in order to finance performance of their duties.
I do not perform these functions on my own. I must receive sound technical advice through my Cabinet and other agencies, consult other organs of government and defer to the feedback from commissions and independent offices. The people’s representatives in Parliament furnish me with the necessary instruments to act, including to allocate and spend funds. From time to time, the Judiciary likewise furnishes me with decisions, opinions and advisories arising from its exclusive constitutional mandate to interpret the constitution and the laws.
We are cognizant of this robust system of checks and balances, which lock us into a purposive dynamic that permits us to do only right and proper acts and restrains us from pursuing improper and illegitimate objectives and courses of action.
The constitution recognizes the need for an institution to safeguard government against perverse or undesirable effects arising from a distortion of the system of checks and balances through collusion, capture, impunity or asymmetry. It also recognizes the possibility of abuses, corruption, conflict of interests and undue influence that can undermine the effectiveness of government and frustrate the public interest.
The safeguard designed by the constitution, to ensure that the public interest is insulated from failures in the three arms of government, is the institution of commissions and independent offices set out in Chapter XV of the constitution. The objects for which they are established are explicit: -
To protect the sovereignty of the people To secure the observance by all state organs of democratic values and principles To promote constitutionalism
A very strong indicator of their safeguard role in the constitutional architecture is the fact that they are only subjected to the constitution and the law and utterly liberated from any external influence, control or direction. Likewise, to further highlight this constitutional pride of place, the tenure, terms of service, discipline and removal are rigorous and entailed by design and also explicitly expressed in the constitution.
To remove a member of a commission or holder of independent office, a petition has to be transmitted to the president after consideration by the National Assembly. The president may suspend the member, but shall appoint a tribunal to investigate the matter and make a binding recommendation to the President.
Commissions and independent offices are indispensable to the integrity, efficiency and effectiveness of government, much in the same way that the internal audit function does to organisations. It generates actionable insights to orient strategy implementation so as to avoid risks and losses, enhance integrity and accountability, improve governance and controls.
We are committed to full and consistent compliance with the constitution as a means of achieving sustainability in our governing agenda and demonstrating that sustainable development demands institutional soundness which calls for constitutionalism.
We are not going to indulge in the escapist fallacies of excusing impunity by citing development, or the cynical binaries pitting prosperity as a tradeoff against freedom. The integrity of the state lies in constitutionalism. For us to deliver on our commitments and achieve the transformation we envisage, we must recognize that our institutions matter.
As you know, this position is not new. We pledged to take measures to enhance the autonomy and efficacy of independent institutions from the first day of this administration. I can confirm to you that shortly after our inauguration, I executed necessary instruments to appoint judges who had waited inordinately, transferred the police budget from the Office of the President to the Office of the Inspector-General and appointed the IG to be the police service’s accounting officer.
I will also enhance the budgetary allocation to the Judiciary, with a further commitment to sustain it for the next 5 years in order to accelerate its urgently needed infrastructural development, especially in terms of constructing new court stations in presently unserved or underserved parts of the country.
We therefore have a good track record in connection with this commitment, because we believe in doing the right thing , not because it is politically expedient or otherwise advantageous, but because it is the right thing. And the constitution is our ultimate benchmark of what is right.
We have walked this road for a while now and the Judiciary can bear witness that there has been no attempt whatsoever to capture it, or any of its constituent organisations and departments, or any of its officers. We want to strengthen our Republic by expanding its economy while enriching its institutions.
Any policy which has the intention or effect of undermining or compromising the autonomy and effective functioning of commissions and independent offices, directly assaults the people’s sovereignty and, through commission or omission, sabotages the realisation of important rights and freedoms.
The existence of the institution of commissions and independent offices, therefore, must force us to stay vigilant at all times, and mindful of the very real boundaries that exist between organisations and agencies of the state and government and, by implication, of the clear, inevitable and rigid limits constitutionally imposed on the power and authority we exercise in the public interest.
The performance of the Independent Electoral and Boundaries Commission, in the last General Election and all the circumstances surrounding it, are illustrative of this point.
A while back, senior politicians teamed up to manage the presidential succession that was due in 2022, with a view to guaranteeing a very specific outcome of the ensuing election. A political mechanism was therefore instituted to facilitate this objective through the capture of autonomous constitutional bodies.
In the case of the IEBC, this mechanism resolved to infiltrate the organisation by introducing at its highest level four sleeper commissioners whose sole task was to lie in wait for the election, then spring into action and take drastic actions to subvert the will of the people.
At the same time, the mechanism constituted a syndicate to execute a series of strategies consisting of bribery, blackmail, extortion, threats and intimidation of various public officials of the IEBC, attempt their abductions, torture and assasination, to storm the National Tallying Centre and attempt treasonous insurrection, use violence to cause the alteration of the vote tallies, as well as entice, bribe, force or threaten the IEBC chair to announce their favoured candidate, or, failing this, eliminate him and replace him with a willing accomplice, from among the sleepers.
The horrifying drama at Bomas and the emergence of break-away commissioners answering to external instructions represented a dismayingly low point in our democratic history. A policy to subvert the wishes of the people had been sanctioned at the highest offices of the state. The sovereignty of the people was in jeopardy.
Our fundamental constitutional attribute: as a free, open, democratic society based on constitutionalism and the rule of law, was under severe test. Chapter VII of the constitution, on the Representation of the People, was subjected to the most shameful, egregious assault. As a result, the nation’s legitimate mechanism for constituting Parliament and the Executive was under serious threat of chaos and paralysis. This is the magnitude of the atrocity which shamefully desperate criminal spectacle at the Bomas of Kenya represents.
The unfortunate events of 2007/2008 are fresh in our minds. By the time we hauled ourselves out of the abyss that was the 2007 post-election crisis, we had lost thousands of human lives, millions of livelihoods, confidence in our institutions, a lot of hope and political innocence. The 2022 assault was intended to go much further and subject this country to a more insurmountable existential predicament.
In the midst of this menacing storm of violent criminality, unrelenting corruption and reckless determination to subvert the constitution, dismantle institutions and take our nation apart, a ray of courage and integrity shone hopefully.
The leadership of the IEBC, comprising a minority of the commissioners, the secretariat and the staff of the Commission, rallied together and resolved to vindicate the democratic will of the people. At great personal cost to themselves, they worked under extremely harrowing conditions to deliver an election which met the constitutional standard and announce results that were beyond reproach.
Regrettably, IEBC officers were murdered in the course of duty by actors interested in compromising the elections. Many more were subjected to serious threats, coercion, intimidation and all forms of pressure by emboldened agents of impunity.
We now know that Chairman Wafula Chebukati, commissioners Abdi Yakub Guliye and Boya Molu as well as the CEO, Hussein Marjan, and their staff, were offered stupendous financial rewards to cooperate with the agents of impunity, but they bravely resisted.
We also know that they were subsequently threatened with dire consequences for them and their families if they did not do the ‘system’s bidding and overturn the choice of Kenyans. Again, we know that they stood strong and firmly said “NO!”
We know that there was a direct attempt to abduct Wafula Chebukati and murder him so that he commission would be paralysed, or a compliant commissioner take over and subvert the people’s sovereignty. It was a hard, cold and lonely time, the threats were dire, the promised rewards lavish and the pressure relentless.
It matters always that a public officer endeavours to do the right thing. It matters even more that a state officer did not once hesitate, even for the briefest moment, to stand his ground and do the right thing under the circumstances surrounding the announcement of the final presidential result in Bomas.
We salute with great admiration the steadfastness, integrity and leadership through example that Wafula Chebukati provided at the IEBC. It is this uncompromising commitment to his constitutional responsibility that enabled Chebukati lead IEBC in learning effectively from the 2013 and 2017 elections to deliver an election that met the highest standards and, in fact, that was ‘unstealable’.
It takes a person who can stare death in the face, and nevertheless pursue the right course of action, to uphold, protect and defend our constitutional values and principles, and to enhance the legitimacy of our institutions. The IEBC had three such people. Even though they were in the minority, they were enough. How much better our nation would be, if all the people serving in our institutions were as committed, as courageous and as patriotic? In the same vein, the Supreme Court decision to uphold the outcome of the presidential election vindicated him and his staff. The pen of history will do the rest.
Through Wafula Chebukati, we have seen what integrity looks like at work. We have witnessed him lead an organisation in learning from its mistakes and do better each succeeding time. We have seen him refine the art and science of delivering elections that are difficult to overturn. Finally, we have seen him withstand heat and pressure, resist threats and intimidation, reject bribes and enticements, in order to stand with the constitution and the people of Kenya.
Chebukati’s experience and fine example brings home in graphic detail the implicit admonition of the constitution. Commissions and independent offices are the auditors of the auditors; they watch over the watchmen. The attainment of the promise of this constitutional dispensation depends on their integrity and vigilance. If commissions and independent offices, or their leadership or membership go rogue, the people will be on their own as things fall apart.
If on the other hand, the commissions and independent offices are steadfast in advancing their constitutional mandates, Kenya’s institutions will receive the necessary impetus towards realising the people’s aspirations by protecting rights, enhancing freedom, deepening democracy and unlocking sustainable development.
As a matter of fact, this is my principal motivation for initiating this engagement between the Executive and the commissions and independent institutions. I believe in teamwork. We are all on the same side, even if we play different parts. If every institution rises to their highest potential and operates effectively, there will be opportunity for coordination, collaboration, cooperation and complementarity, as well as healthy competition for the benefit of Kenya and our people.
The purpose of this gathering, then, is to kick-start sustained deliberation and productive engagement on the most appropriate ways and means of accelerating the full actualisation of our constitutional dispensation. We are mandated to reason together from time to time, and to collaborate in forging the best way forward for protecting and enhancing democracy, the rule of law, transparency, accountability and a human rights culture.
There is a role each one of us can and therefore must play to ensure that more than a decade after its promulgation, we can facilitate the the constitution to unfurl its wings, so that Wanjiku can finally behold it in full flight. Thank you. God Bless you.