Tuesday, September 14, 2010



Prof. Saitoti's interpretation of Article 17 in the Sixth Schedule is intriguing!

By Jerry Okungu

Nairobi, Kenya

September 14, 2010

The new constitution is very clear on what to do with the provincial administration. It says rather clearly under Schedule 6, Article 17 that , “ Within five years after the effective date, meaning after August 27 2010, the national government shall restructure the system of administration commonly known as the provincial administration to accord with and respect the system of devolved government established under this constitution.”

A keen reader of this Article will realize that one; there is no hurry to restructure the provincial administration in the first 14 days after the effective date as we have tried to do. The reason why the government needs five years to restructure this department is because it is a structure that you cannot simply wake up one morning and start tinkering with. It needs a careful and systematic handling in order not to destabilize the order of things.

Secondly, the article is very clear on who will do the restructuring when that time comes. In my own layman’s interpretation of the law, a national government is much bigger than the department of the provincial administration in the office of the president. It is even bigger than the office of the president, parliament or the judiciary. It is the entire government structure involving the three arms of government.

Based on the above considerations, it was curious to learn through the press that the structure of this complex security system that has been with us since time immemorial had been accomplished in just two weeks since the promulgation by just a handful of people in the department who saw no reason to involve the cabinet, parliament or the Attorney General’s office; let alone the ministry of Justice. Where did they get the powers to determine what was best for the new Kenya without consulting Kenyans who are the owners of the new constitution?

To what extent has this strange restructuring respected the devolved government? Has it even bothered to ponder over the administrative, political and financial implications of setting up two parallel systems of government trying to do the same job? Did the restructurers have in mind what Kenyans said during the referendum, what the Parliamentary select committee on the constitution had in mind when they rejected the three tier government? Did they stop to consider why parliament rejected all the 150 plus amendments that were brought to the house at the last minute before we went to the referendum?

But perhaps the most perplexing thing about this provincial administration fiasco was the way it was crafted. In its detail, the 8 provinces are back, followed by 23 regions that report to the provinces. Then below the regions are the 250 districts. The officers manning these units will be 8 Provincial Commissioners, 23 Regional Commissioners and 250 District Commissioners. In this structure, there is no mention of counties, governors, deputy governors or country assemblies or even how they will relate to each other.

Since this structure that goes down to the chief with another layer for paramount chief will be reporting directly to the national government, it is very clear that PCs, Regional Commissioners and DCs will be having their bosses at Harambee House in Nairobi and not at the Counties.

It is a signal that the restructured provincial administration will have no time for local governors that for all practical purposes will most likely have been reduced to glorified councillors in this new scheme of things.

But why did the honorable minister come up with this structure that is not definitely in the constitution without seeking approval from parliament? Is there something that Kenyans are not getting right from George Saitoti? Weren’t we told that this constitution is sacrosanct and that only Parliament can alter even one letter after garnering a 65% majority in Parliament? Where did the Internal Security get the authority to drastically “amend” a section of the constitution because indeed this action amount to an amendment?

During the referendum campaigns, the one person who opposed the proposed constitution was Daniel arap Moi. His main reason for opposing it was because it would abolish the provinces, something that didn’t sit well with him. Along with him were a number of MPs from the Rift Valley, parts of Nyanza, Eastern and Coast that felt the same. They wanted provinces to remain intact so that they could reintroduce federalism as was the case at the Lancaster Constitution in 1962. Incidentally, that was Raila Odinga’s version of the devolution, a three tier government where counties would be clustered around the regions (now provinces) for more effective coordination and financial viability.

Is the Internal Security Minister now telling Kenyans that all those tough campaigns we went through to defeat the proponents of majimboism were all in vain? Are we now telling Daniel arap Moi that he can after all have his provinces despite Kenyans resoundingly rejecting them at the last referendum?

It is unfair to try derailing this constitution so early in the day.