There seems a high level of agreement that global climate change is a significant factor in the catastrophic floods. And that has absolutely nothing to do with “Acts of God” but is the result of human activity or inactivity (now when we know what ought to be done but so often cannot summon up the will to do it).
Many have also pointed to national (in the sense of internal to Kenya) factors that, while they may not have caused more rain than usual, involve failure to take possible actions to avert or deal with its consequences, or have even made its consequences worse.
If I ask myself – “what if anything of relevance does the Constitution have to say?” there is one word that stands out: accountability. That and “accountable” occur many times.
The Constitution
Accountability is a national value (Article 10(2)(c) and accountability to the public a guiding principle of leadership and integrity (Article 73(2)d)), a principle of public service (Article 232(1)(e)) and of public finance (Article 201). It figures in the provisions about fair elections. (Article 81(e)(v) and Article 86(a)). “Cabinet Secretaries are accountable individually, and collectively, to the President” (Article 153(2)). The Judicial Service Commission must “promote and facilitate the independence and accountability of the judiciary” (Article 172(1)); one object of devolution is to promote “accountable exercise of power” Article 174). “The accounting officer of a national public entity is accountable to the National Assembly for its financial management” (Article 226(2)) the National Police Service must “practise transparency and accountability” (Article 244(b)).
The Oxford English Dictionary - containing the “meaning, history, and usage of 500,000 words and phrases past and present” - includes the meaning as “liability to account for and answer for one's conduct, performance of duties, etc.; responsibility”.
That last word seems crucial. If you are accountable you accept (or are expected to accept) responsibility for your actions.
Accountability may take many forms. Accountability of CSs to the President involves the risk of being dressed down or even sacked. Accountability of elected officials to the public implies the risk of being not elected (or even recalled). Public participation is a sort of accountability – or linked to it. Accountability to the National Assembly or Senate means appearing before them, being questioned, criticised, and embarrassed.
But the Constitution’s provisions are not limited to those using this word. Accountability is a central theme – beginning with the possibility of impeaching the President. There are detailed provisions for removal from office of judges, the DPP, Auditor General, Controller of Budget and commissioners.
If someone in public office “approves the use of public funds contrary to law or instructions, the person is liable for any loss arising from that use and shall make good the loss”. (Article 226(5)). This means that they may be prosecuted, and under the Public Finance Management Act the Treasury could sue to recover money misspent. The Public Accounts Committee has said this provision remains “in limbo”.
CS may be removed by the National Assembly (by the representatives of the people) – as the CS Agriculture is realising.
Ordinary law
Accountability mechanisms are not found only in the Constitution. Most holders of public office can be taken to court on criminal charges or in a civil case. Physical abuse, locking people up for no reason, defaming them, stealing, taking bribes, negligence causing loss or damage could all give rise to a criminal case, a civil one or both.
Certain people are privileged under the Constitution. The President is never liable while in office for anything he does as President. Judges have a slightly reduced immunity for what they do as judges: they are not liable for what they do – in a judicial function – provided that this is lawfully done and in good faith. Indeed it is not entirely clear how far this immunity goes – if it is lawful how could a judge be held liable? If unlawful there is no immunity.
A member of a commission, or holder of an independent office (which means the Auditor General and the CoB), is not liable for anything done in good faith in carrying out their functions. “Freedom of debate in Parliament” means MPs are not liable for what they say there.
I suggest that the Constitution’s stress on accountability embraces the civil and criminal law – and indeed free speech and other mechanisms that may be used to hold people in public positions accountable.
In recent years a number of Acts have tried to give other public officers immunity from being taken to court personally - if they have acted in “good faith”. They include the Attorney General, Head and members of the National Intelligence Service, and the Inspector General of Police for seizure of Property under the Prevention of Terrorism Act.
I am very doubtful about these provisions. The Constitution chose to give certain officials immunity – but not others. With the constitutional stress on accountability - and on equality and equal protection of the law - how can privileged extra protection of the law be justified? If other people doing the same sort of thing are legally liable even if “in good faith” why not these? The issue is not a big one: we do not have collective responsibility; you are liable for what you do yourself, unless it is done by your employees within their employment – but heads of services and government offices are not employers of their staff. But if a member of the NIS taps a phone, for example, believing in good faith they had the power to do this which they did not, why should they not be legally liable? However, the service as such would probably be liable.
Accountability for floods
This becomes much more difficult, even there is no attempt to give officers immunity. There should be political responsibility for elected officers. CSs may be summoned by a parliamentary committee and answer questions, and either House may summon “any person” to give evidence or information. Giving evidence implies that the House is conducting an inquiry. But the Houses can rarely make a finding that has teeth (other than dismissing a CS).
Gross acts of negligence have occurred over the years. The railway company that stopped checking the tunnel above Mai Mahiu. The people who don’t clear drains – or clear them only to leave their contents where they will be washed back into the drain at the first heavy rain –and their supervisors. The town planners who have failed to plan or those who ensure that plans are followed. Those who have taken bribes to allow building on river catchment areas. The people who have seen this – if not on the same scale – happen before and have promised to ensure it never happened again, only to go back to sleep afterwards as though nothing had happened.
Morally you might think some of these are guilty of manslaughter. Many were negligent (acting in a way that a reasonable person in their position would not).
Superficially the law sometimes says that we are liable for the foreseeable consequences of our actions or failures. But that foresight has to be rather specific. It is almost as though the bigger the catastrophe you cause the less you are legally liable.
The human rights of perhaps millions have been affected (rights to education, health, life) – but there is no effective remedy.
Yet many have violated their professional obligations, or their employment duties – or even the law. Unfortunately it is often so much easier to locate and penalise the “small fish” while the real decision makers escape. But heads ought to roll – of those really responsible. And people must remember those who have failed them so abysmally– and vote accordingly.
But will a single soul resign, be sacked or penalised? Who has said “We are sorry – we didn’t do what we ought to have done, even promised to do”? Who says “The buck stops here” – meaning “I take responsibility”?