Last week, I suggested that the presidential system tends to generate a God complex (or at least a King complex). And on Sunday, Kisumu Governor Anyang’ Nyong’o devoted his Nation column to a similar point.
The same day as my piece appeared, the media reported an example. Our Deputy President, Rigathi Gachagua, had ordered administrators in the Mt Kenya region to reduce the number of alcohol selling outlets, the Star said. He wanted only one bar and restaurant per town. Administrators who failed to tame “the vice” would have to face him (the DP).
DP AND COUNTIES
The President assigned certain functions to the DP in Executive Order No. 1 of 2023. These include “Co-ordinate Inter-Governmental relations between the National Government and County Governments.”
But this does not authorise the DP to direct county governments. The Constitution divides functions between the county and national governments. One county function is “liquor licensing”.
There is still a national Act on licensing of businesses that sell liquor, but counties also have laws. Clearly as a minimum “liquor licensing” refers to licensing bars, restaurants, and shops to sell alcohol to the public. In fact, one judge said there is in the Constitution “not the remotest reference to the control, regulation or licensing of alcoholic beverages at all as a function of national government”.
Certainly nothing suggests that the DP can tell the counties how to decide what is clearly within their mandate to decide.
Powers are assigned to the counties because certain issues should respond to local needs and concerns. Local planning and land use, including the location of businesses, is something that it makes eminent sense to decide locally, and the location of alcohol related businesses raises particular issues that may be peculiar to the locality, and the community.
ATTITUDINAL PROBLEM
The DP’s statement reflects at least two problematic attitudes. One is the difficulty that national government institutions have in accepting that county governments are governments — not outposts of the national government.
True the relationships between national and county governments are supposed to be cooperative and not confrontational. This should work both ways; it does not mean that county governments have to do what the national government wants within the former’s sphere of activity.
The other attitude issue is this inflated idea of the powers of leaders. I suspect it goes back to the first President. Sometimes one gets the impression that leaders – and even the public – think that governing is a matter of flourishing one’s flywhisk or rungu (or imaginary or virtual equivalent) and ordering that things happen. (It seem to me to fit with having your photo displayed even in private businesses.)
But no official, however exalted, is all-powerful. No official has powers other than those that the law gives. True, monarchs often had powers that came from their position, which are known as prerogative powers. But in a modern constitutional state that did not begin as a monarchy the head of state is the creation of the constitution and has no more powers than that constitution grants – or than other law grants, provided that this does not conflict with the Constitution.
DP AND ADMINISTRATORS
How about the DP and chiefs etc.? He said, apparently, that “we will not allow a situation where our children are destroyed by illicit brews when there are police officers and administrators.” But can he tell those police officers and administrators what to do, and can he discipline them if they do not do it?
For a start, at least some enforcement of the law about liquor is the responsibility of the counties.
The local face of the national government is what used to be Provincial Administration and is now under an Act called the National Government Coordination Act.
The President assigned responsibility for this Act to the Ministry of Interior and National Administration (Cabinet Secretary Kithure Kindiki) not to the DP. So what those officers do is ultimately the responsibility of the Cabinet Secretary and the Principal Secretary in the relevant Department (Dr. Raymond Omollo). Not the DP.
And discipline of those officers is the responsibility of the Public Service Commission (Article 234 of the Constitution) – an arrangement intended to make sure that this is done on the basis of professional standards and not political concerns.
The investigation of criminal offences is mainly the task of the police. And they are not subject to the control of the DP either. They are controlled by the Inspector General of Police (IGP) through the police hierarchy, and only the Director of Public Prosecutions can direct “investigation of any information or allegation of criminal conduct”, while the CS (again Kithure Kindiki not the DP) may only direct the IGP on matters of policy.
NO WAY TO GOVERN
One of the problems of the fly-whisk approach to government is that it is likely to produce ill-thought-out and unwise actions. Surely the idea of one bar or restaurant only for a town falls into that category.
Why do we license liquor establishments? An element may be raising money (but if this is the only purpose it is just a tax). The fundamental idea is that by permitting alcoholic liquor sales in certain places you can prevent them in others –such as near schools, places of worship, or, if noisy, in residential areas. You can regulate opening hours, give licences only to responsible people, and - because you know where the bars are - more easily prevent alcohol being sold to children, and to those already drunk, require that the bars be properly run, and generally keep an eye on them. If you don’t permit any legitimate drinking places, people will resort to illegal establishments, to private (and secret) drinking clubs. Much harder to control.
But one per town! For wananchi or the elite? Or in between? In the CBD or one particular estate?
I realise that the following day, the DP said he didn’t mean one bar per town – just not more than are needed. But this reinforces my point: If a leader believes that the right way to make decisions and publicise them is on the spur of the moment, without consultation, public input and careful reflection, they are bound to make and announce half-baked and, indeed, foolish, decisions.
Governing is hard work.
There is much too much theatre and not enough thought in the leadership style. Some years ago the Public Service Commission commented that there was a lack of evidence-led policy making. This is part of the same problem, I suggest. Effective governing needs research into why there are problems, and very careful planning to identify solutions – in law or in practice or in “development projects” as the case may be – to ensure that those solutions are practicable, including affordable, in the Kenyan context, and how to ensure that those solutions are carried out, monitored and (where appropriate) enforced.
WHAT DOES THE CONSTITUTION SAY?
Almost everyone seems to realise that the Constitution requires public participation in decision making. Liquor licensing is an example of something that ought to have public input. Not that the public decide but that because it affects them they should be heard, and will have relevant suggestions. However, public participation is just one casualty of fly-whisk decision making.
Equally important is the inability to recognise that the Constitution divides power – and is intended to do so. Devolution is one example – which there is such reluctance to accept the implications of. A Parliament that is not just the collective poodle of the President, independent courts, independent commissions, and independent officers (like the Director of Public Prosecutions) are others, which are equally disregarded, misunderstood or undermined.
Nor is reluctance to accept these limits on power confined to the State House leadership. I think we see it in the recent police suggestion that the chair of the Police Service Commission be the Inspector General of Police. The Commission was set up precisely to ensure that recruitment was fair, and that the IGP does not build an independent empire.