President Uhuru Kenyatta’s recent elevation of Fred Matiang’i to “chief” of the Cabinet Secretaries has been widely interpreted as a swipe against his deputy, William Ruto. While there may be some truth in that, it feels like once again the country is missing the wood for the trees. The appointment is also a swipe against the constitution itself, part an unrelenting assault that the President and his party have mounted on the document since their campaign for office in 2013.
To understand why this is the case, one needs to think back to the illegal deportation of Miguna Miguna, the self- declared “General” of the National Resistance Movement. Many will recall that this action, which came in the aftermath of Raila Odinga’s mock swearing in at the end of January, precipitated standoffs between the Executive and the Judiciary, with the former disobeying multiple court orders to produce him in court and return his Kenyan passport.
In December, the High Court ruled on Miguna’s constitutional challenge to the government’s action and agreed in toto with him. In fact, Justice Chacha Mwita found that Matiang’i, as well as the Inspector General of Police, Joseph Boinnet and Immigration Permanent Secretary, Gordon Kihalangwa, had violated the rule of law, the constitution and that their conduct amounted to abuse of their office. The constitution prescribes that such conduct is grounds for removal from office, not promotion.
This is the context in which we should understand President Kenyatta’s actions. He has basically flashed the constitution his middle finger and, by so rewarding, rather than firing, one who has so callously violated it, demonstrated his own contempt for the document and the institutions and standards it establishes.
This contempt has been on display even before he became President. It was his and Ruto’s candidacy for the highest office while indicted for crimes against humanity at the International Criminal Court that made a nonsense of the constitution’s prescriptions on leadership and integrity. Today, he appears completely oblivious of the irony when he says that no person charged or implicated in corruption will get a State appointment until they are cleared, as a measure of dealing with graft.
But it is not only the President who is at fault. The constitution give Parliament the duty of oversight over Cabinet Secretaries and MPs can initiate a process for removing those that are guilty of gross misconduct. Yet to date, there has been no attempt to probe Matiangi’s conduct or even calls for his resignation or removal. Neither has any of the MPs raised their voice in protest at his elevation except in as much as it concerns the fortunes of Ruto.
The media, too, has not shown any particularly interest in rocking the political boat, instead preferring to let the politicians take the rudder. As always, the press has been entrance by the drama of of our personalized political contests (and especially the fate of Ruto’s ambitions to succeed Kenyatta) and are blind to the substance of the issues such contests skirt around. Quite the contrary, the media has been only too keen to lionize Matiangi’ and to present him as the savior of the wananchi, rather than the dangerous lawbreaker he is.
And we have been here before. In 2004, it was the late John “The Crusher” Michuki who was all the rage, the media again doing little to question his methods and motivations. They would pay dearly for that when he would authorize the 2006 raid on the Standard premises and order a news black out in the wake of the violence that followed the 2007 election.
Finally, failed by their representatives and kept singularly uninformed by the press, Kenyans have also been unable, even unwilling, to recognize the threat that allowing the several arms of government to subvert the constitution poses. After more than a century of governmental repression both before and after independence, the arrangements and duties in the 2010 constitution were primarily aimed at achieving one thing that its predecessor had failed to do: to bring the Leviathan to heel. That failure inaugurated half a century of brutal, murderous and kleptocratic regimes.
Yet nearly a decade after Kenyans voted overwhelmingly to adopt it, the constitution faces a similar fate: amended or simply ignored into irrelevance. And with no one to stand for it, this is a fight the constitution cannot win.