Advertisement

We the people must speak up, they can’t hear us

Sunday June 26 2011

New Chief Justice Willy Mutunga and Deputy Chief Justice Nancy Baraza are finally in office. As is Director of Public Prosecutions Keriako Tobiko, despite there having been no satisfactory conclusion to the constitutional problems raised with his particular appointment, or to the allegations brought against him.

The whole process demonstrates just how hard it seems to be to change thinking and practice to align with the demands of the new Constitution.

For example, public participation is now mandatory in all aspects of public life, including public appointments. The question is how best to enable the people to participate. In practice, we’ve seen a fairly hodge-podge approach. Commissions, panels, inquiries, task forces are announced. The composition is usually top-heavy with representatives of the ministries, departments and agencies most directly concerned. And then there’s usually a nod given to the private sector and to civil society (either the legal professional bodies, more recently the unions and, inevitably, the faith-based organisations). Sometimes the women’s movement is remembered too.

These commissions, inquiries etc call for written submissions from the public (either as private citizens or as organised collectives of the public concerned with specific themes). That dutifully done, provision is also made for oral submissions — either through “experts” conventions, “stakeholders” conferences and workshops and public hearings. These may or may not be publicised — again through national media outlets.

The commissions, inquiries etc then retreat to write things up. Whatever they write up may or may not again be put to the public — or submitted directly to the ministries, departments or agencies concerned to (theoretically) filter up to the Cabinet and back down to parliament.

The problems with the practice that has emerged are, of course, numerous. First, it’s not always evidently consciously thought out — or apparent whether the modalities being used were deliberately chosen for the results desired.

Advertisement

Second, what is captured, understood and ultimately used of the views the public brings forward is not always documented in a way that shows clearly what the standards were for determining what will be used and what will not be used.

Third, of course, is the fact that we’re a highly differentiated public — and again, there seem to be no yardsticks for determining what to do when our obviously equally differentiated interests and positions are at odds.

And finally there is the question of how to handle allegations — as seen, again, in the case of the Director of Public Prosecutions. If those putting forward allegations cannot themselves entirely substantiate them, then clearly an investigative process is needed — to separate out libel from truth and avoid having those allegations forever hang around.

Apart from what is made of the public’s views — and on what basis — is the question of the public itself getting used to putting those views forward, in evidence-based, rigorous and substantive ways. We are a country that loves political chatter and gossip — there is no shortage of strongly held views. But there is a shortage of channelling those views in ways that will achieve the changes and shifts we desire.

L. Muthoni Wanyeki is executive director of the Kenya Human Rights Commission

Advertisement