Although Kenya adopted an American style presidential system, based on the US constitution, there are some fundamental differences between the two constitutions.

People often talk about the checks and balances in the US constitution. We can see the limitations of that system – when a president with a particular agenda has a majority in both houses of Congress, and when he  appoints  the  Supreme  Court judges, and has the ability to direct prosecutions, to pardon grievous offenders without anyone else’s input – to take a few examples.

Our constitution specifies more checks and balances on the power of the president. There are institutions emphasised to be independent like the Judiciary, Judicial Service Commission, the Director of Public Prosecutions, the IEBC and the three human rights commissions. The word “independent” does not appear in the US constitution, but appears many times in ours.

Of course we all know that independence is all too often not exercised or protected by the bodies that have a constitutional duty to do so.

Making decisions
Governments make decisions and act on them. If they do not act on them, or act in a different way, then another decision has been made, to change the original one.

While the US Constitution creates various bodies and offices, and specifies their powers, it does not say how they should use them. The original US Constitution did not even include human rights, though the first 10 amendments are on human rights.

The Kenyan Constitution creates many  bodies  and  offices  —  like Parliament, the executive, various commissions and other independent bodies — and says a lot about how those bodies must make decisions.

Not just human rights — though these have, or should have, a powerful impact on decisions — but the national values and principles, and other principles. We’ll come back to some detail shortly. When people complain in political ways, or take some government body to court, they are probably complaining about the result of its decision-making, but very often the form of their complaint or court petition is about the decision. They are often saying in effect “You ought to have taken into account this or that.” Sometimes the complaint is “You decided that something should be done, but gave no guidance to those carrying it out, so they abused our rights”— when talking about things like evictions.

Government complains about courts telling them they made a wrong decision, or issued an interim (or “conservatory”) order stopping them from acting on their decision, at least until the case has been fully argued and decided.

All too often the obvious response to such complaints is “If you had made your decision in the right way in the first place you would not be in this mess now”.

Think of common situations like policy making without adequate public  participation, or passing law with the same failure, or impeaching governors without enough MCAs voting, or without adequately considering the facts and whether there was really a breach of the Constitution. Similarly dismissing public employees, or refusing (or granting) planning permission without considering all the relevant factors.

Many government bodies have duties to consider very specific facts, often under law. And of course, there will probably be various factors like “Can we afford this?”, or “Does this fit into our political programme?” But here I want to illustrate my point by focusing on the obligations under the Constitution.

In case of any decision-making body of people it is particularly the responsibility of chair of the body, and the person who makes up the agenda of decision making meetings, to ensure all relevant factors are considered. But everyone involved must be conscious of the framework for their activities.

What questions?
There could well be quite a long list of questions that ought to be within the consciousness of everyone involved in making decisions. Something like:

1. Do I/we have the power to make this decision – including should it be a national decision 
but we are a county body or the converse? (Fourth Schedule to the Constitution)

2. Have we given the public adequate opportunities to comment on what we are deciding, including giving them enough information, and are we taking seriously the input we have received so that even if we decide not to accept input, they understand why? (Public participation – Article 10( 2 )(a))

3. Specifically, have we ensured that people and communities particularly affected have had enough opportunity to give input? (Inclusion – Article 10( 2 )(a)))

4. Are we being as open as possible with the public and those particularly affected? (Transparency – Article 10( 2 )(c); access to information – Article 35; fair administrative action – Article 47 )

5. If this decision relates to “development”, – is it sustainable? How will people in the future be affected compared with those alive now. (Sustainable development – Article 10( 2 )(d) and Article 201(c))

6. Who will benefit from this decision? And which groups will, or might, suffer from it? (Equality – Article 17; public finance must promote an equitable society — Article 201(b)). Are there classes of people who may suffer even though we did not expect or intend it? (Indirect discrimination — Article 27( 4)) Can suffering be avoided while the benefits remain? And if some decisions depriving certain groups are inevitable, does the law permit this? (Limiting rights – Article 24 especially ( 2 ); limitations must be as restricted as possible Article 24 ( 1 )(e))

7. Specifically, how will people of some particular gender, age, ethnicity, religion, county, or some other specific characteristic be affected – Article 27( 4 )? (This might be especially relevant if the decision will involve only certain people getting benefits – like scholarships or business grants.) Should we be taking positive steps to increase equality (Article 27 ( 6 ))?

 8. Will anyone — even I myself — benefit from this decision in a way that ought to debar them from participating? (Avoiding conflict between personal interests and public or official duties – Article 75( 1 )).

9. Do we understand how much public money will be spent as a result of this decision? Could money be saved without undermining the objectives? And if this decision is implemented, what other things will not happen? (Public money to be used prudently and responsibly – Article 201(d))

10. Can we justify spending  money on this if we need it more for health, education etc., under Article 43. (In response to a claim on Article 43 rights it is the state’s responsibility to show that resources were not available – Article 20( 5 )(a))

Often, there will be other human rights that should be on the table for discussion. Remember that “The Bill of Rights is…the framework for social, economic and cultural policies” (Article 19( 1 )).

How?
I was imagining a simple sort of methodology – like having a wall in offices painted with list of “Our fundamental constitutional duties” (or a printed poster to the same effect). I suspect this would not go down well – and would not work for bodies that go on retreat to Coast hotels to make their decisions! Maybe the files in which papers for meetings are kept could have at the beginning a list of the constitutional decision-making duties. And I have known of committees that begin every meeting with an item on their agenda, which is a reminder of such duties.

The challenge is to prevent such processes from becoming meaningless rituals. This can easily happen. They may even be counter-productive if the decision-making body can say, “Of course, we took these issues into account; we have a rule that they are drawn to our attention at each meeting and we observed this on that occasion”.

I also wonder if decision-making bodies have any procedure for studying the outcomes of court cases to avoid repeating mistakes — rather than just complaining about them.

This article was first published by The Star Newspaper.

Image: FILE