Puncturing Political Patronage in Kenya

Here’s a yawning opportunity gone begging:

In exercise of the powers conferred by section 51 of the Water Act, the Minister for Water and Irrigation appoints Reuben Ndolo to be the Chairman, Board of Directors of Athi Water Services Board.

This notice was reported to have been issued in the Kenya Gazette of November 12, 2010. Because of the absence of a competitive appointing process, this may not only be a missed opportunity but also its own goal.  Here’s why.

Although Section 51 of the Water Act, Chapter 372 of the Laws of Kenya, allows the Minister to make appointments of members of water services boards via a gazette notice—which should also specify the respective qualifications of each member—there is the small matter of the new constitution. Article 232 (1) (g) of the constitution provides that the values and principles of the public service include fair competition and merit as the basis of appointments and promotions. This provision is only subject to allow for representation of Kenya’s diverse communities and to afford equal opportunities to men and women, members of all ethnic groups, and persons with disabilities. And there’s more.

Under Article (10) (2) (c) of the same constitution national values and principles of governance include “good governance... transparency and accountability.” In addition, Article 73 (2) (a), (b) and (d) respectively provide that the guiding principles of leadership and integrity include “selection on the basis of personal integrity, competence and suitability...”, “objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by... favoritism...”, and “accountability to the public for decisions and actions.”

The new constitution is very clear in Article 2 (4) that any law that is inconsistent to it is void to the extent of that inconsistency and also proceeds to invalidate any act or omission that contravenes it. So here’s the question: has the (re) appointment of Ndolo met this new threshold established by the constitution?

In fact, a perusal of copies of the Kenya gazette published since August 27, 2010, when the new constitution was promulgated, reveals numerous unilateral ministerial appointments made to public corporations. And it cuts both ways as these appointments have been made by both the Party of National Unity and the Orange Democratic Movement sides of the coalition government. It is submitted that there is now solid constitutional ground to contest all these appointments.

However, outside these constitutional considerations, it is important to locate this question in our current politics. In the old repressive days when the independence party Kanu straddled the political landscape like a colossus, it was not uncommon to hear complaints about the appointments to the public service of people who were considered to be unqualified and unsuitable. The likes of Kariuki Chotara, Ezekiel Bargentuny, and Mulu Mutisya held weighty public service positions even when there was public questioning about their literacy. But they were close political allies of the President and as we know, those were the days of the imperial president: mama na baba (mother and father).

These pervasive patronage networks were one reason that led to the popular revolt against Kanu. If patronage was such a significant political no-no in Kenya that it was flogged to inform the political and democratic change we see today, it cannot suddenly be okay now that it is being exercised by the reformists of yester-year. For one would need a cogent explanation why something that was poisonous yesterday has suddenly become palatable today. Otherwise, this will simply represent another missed opportunity: just as independence from colonial rule in 1963 did not bring freedom, the re-introduction of political pluralism in 1992 did not translate into hygienic democracy, and the transition from Kanu in 2002 did not bring democratic transformation.

But how does one justify political patronage? Patronage results in the political doping of the public service and undermines the national interest. It causes political and economic stagnation because it is not rooted or focused on the achievement of any results. Moreover, it scuppers professionalism and meritocracy: with it we can kiss goodbye every developmental goal or vision being passionately advocated such as the Millennium Development Goals or Vision 2030.

It also leads to exclusion and alienation: this is particularly undesirable in the case of Kenya where social, ethnic, and political dynamics are so sharp. Indeed, it is not just smart politics anymore. The lesson to be gleaned in the recent defeat of Ndolo by Gideon “Sonko” Mbuvi in the Makadara constituency by-elections—which is why Ndolo is now being reappointed to the Athi River Water Board—is that the public is disenchanted with exclusivist politics which do not allow for open competition. It will be remembered that “Sonko” was reported to have sought the nomination of Orange Democratic Movement but was apparently rebuffed because Ndolo was considered the “stronger” candidate and this led him to contest under a Narc-Kenya party ticket.

The writing is on the wall: experience shows that those who will not learn will have the lesson taught to them again. The shouting, heckling, and jostling over YES or NO for the new constitution is now over and the dancing to celebrate the promulgation has ceased. Time has come for all our politicians to acquaint themselves thoroughly with the letter, spirit, and mood of the new constitution.