By JILL COTTRELL GHAI and YASH PAL GHAI
This is the final article in this Katiba Corner series on values and principles. Last week’s article was a rather depressed one: on the theme of how little we seem to have moved towards realisation of constitutional values, as shown by one incident, the teargas unleashed on innocent children by state officials.
Now we want to look forward, and try to be a bit more optimistic. Our thesis is: there is a great deal of constitution talk, including about values, but we must – and most important we can – do more than talk.
In his second article in this series on dignity, Yash Pal Ghai showed how much the courts have been talking about dignity, beginning with Justice Mumbi Ngugi’s statement: “The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings”.
In fact, the values of the constitution feature quite prominently in judgements, and what judges say outside the courts, and in parties’ appeals to the courts. Article 10 was invoked in the current case about the Security Laws Amendment Act, and by Law Society members objecting to the Society’s adding to their annual practice fee to pay for an arbitration centre.
Recent cases where the judges have made use of the values include one where Justice Murithii held that Article 10 set out a system of freedom of choice, and therefore – when the constitution speaks of Kadhi courts having jurisdiction if all the parties are Muslim religion and they “submit” to that jurisdiction – it means they cannot be compelled to take their case to the Kadhi courts. And when Justice Odunga directed that the Director of the Kenya School of Law appear before the court, he said, “those who disobey court orders risk being declared by the court to have breached Article 10 of the constitution”.
The President, too. In fact the constitution requires him to address the nation annually on how far the country has realised the values in Article 10. He managed, in a concrete way, to weave into his first address (March 27, 2014) every value in that Article except rule of law, democracy, human dignity, human rights and accountability. He appealed to transparency, accountability and prudence in the use of public resources, integrity, transparency, and accountability when launching the electronic procurement and payment system.
Ministries also may (though some do not) place the constitution and its values in a prominent position. The Ministry of Information says it has these core values: Accountability and transparency, equity and equality, professionalism and ethical practices, teamwork and passion for results, honesty and integrity, innovativeness and creativity, efficiency and effectiveness and patriotism. And the Ministry of Health’s policy for 2014-30 says a good deal about equity, equality, participation, transparency and social accountability.
The various independent commissions, the fourth arm of government under the constitution, are also well familiar with the constitution’s values. They build them into their strategic plans and cite them in their speeches, and have a genuine understanding of at least some of them.
It was quite exciting to realise that the Public Service Commission had produced a report called Public Service Compliance with Values and Principles in Articles 10 and 232 of the Constitution, which “evaluates all the trends that were witnessed in ministries, departments and other agencies (there were 249 of them) in terms of implementing the national values and principles, all aimed at ensuring that every Kenyan child, woman and man reaps the dividends of democracy”.
We can learn a good deal from this. Some of it is discouraging: especially on accountability for public funds, and the failure to hold individuals to account. Seventy-seven per cent of prosecutions for corruption end in not guilty verdicts. Yet we all know that the number even prosecuted is small, especially when it comes to the big fish. It is said that prosecutions fail because potential witnesses refuse to give evidence — which shows that they have little respect for national values of integrity, transparency, accountability and the rule of law.
There is a far greater awareness of the value of public participation, and the PSC report tells us that “Four ministries and state departments and 30 state corporations have developed their own policies for public participation”. But this is 34 out of 249. And Parliament, the body which the constitution most plainly targets for participation, has a long way to go. How can the Senate publish on January 27, an invitation to the public to comment on the Commission on Revenue Allocation’s recommendations on sharing revenue among the counties for the next three years, expecting the public to do so by February 3 (one week away)? This makes a mockery of the idea of participation. But it is typical.
Values and principles are not physical objects. They live in people’s hearts and minds. They require a commitment from individuals, at every level in society. They must not become empty words, just slogans to be mouthed in official speeches and meaningless vision and mission statements.
How to achieve this is the challenge. Often there is a belief that what is needed is “trainings”. There are endless trainings. MPs and county assembly members get trained. Public servants get trained. The PSC report says that “measures are needed to train lower cadres who are the majority in order to institutionalise and entrench professional and ethical practices in the public service”. The senior ones get trained. But have we really seen the results in terms of improved standards of values? And surely these officials know that their acts of dishonesty are against national values (and conceal them as well as they can)? More productive may be telling ordinary Kenyans of the values that public officials must observe.
The Chief Justice said in speech at a meeting between the Senate and the Judiciary last month: “Ours is a new constitution that is so progressive that a majority of our elite may not even recognise its revolutionary thrust. For many, in its dispersal and rearrangement of power; in its values, standards and spirit with respect to integrity, equity, equality; in its directives and demarcation of the boundaries of power; in its detail on the canvass of rights; it is terra incognita. And therefore its implementation will face challenges. We must realise that we are the first generation of leaders under this great constitution and foundations we lay in its implementation will have a strong bearing on its success or failure, the challenges notwithstanding. What will prevent these challenges from becoming crises is the manner in which we, as leaders, manage the emergent difficulties.”
The CJ is of course right that leaders matter. But what will make them take up the challenge?
The solution, we suggest, lies with the people. As they realise, increasingly, what the constitution demands in terms of values, they should insist that the governments and the legislators, the public servants, and the business people, the teachers, the doctors and nurses and the religious leaders all respect those values.