opinionBy Pheroze Nowrojee
Civil servants cannot enter the politics of the day. Civil servants are not the political spokespersons of the Republic of Kenya.
They cannot make political speeches for the country. Yet in the past few days we have seen a flood of political steps taken by civil servants. They are improperly violating constitutional boundaries.
Head of the civil service Francis Kimenia at a specially called press conference made a statement of his personal belief on what a foreign country, the US, meant or did not mean in respect of remarks made by its President and its Assistant Secretary of State for African Affairs.
"I believe we should go with what the President said." (The Star, 9 February 2013). This is unconstitutional. As a civil servant, Kimemia's personal belief cannot be broadcast, least of all as the national response. It is not only irrelevant to the conduct of state affairs, it is unlawful.
This is a civil servant deciding what the Republic's positions are in the international arena. Kimemia is way out of line. More ominously in the current situation, it is a major indicator that Kenya is being run at this very critical time by constitutionally unauthorised decision-makers. They have become bold enough to trespass outside their professional limits and to intervene in highly contentious political issues.
The Inspector-General of Police, David Kimaiyo issued a public statement that politicians should not discuss land ownership in their campaigns. He did not suggest that there was any breach of the law by any politician. Yet he called for a gag. He was stepping into the political arena. He was abridging the Bill of Rights. Kimaiyo too was way out of line.
Kimemia later attended a political campaign meeting in Othaya. It is no wonder that Kimemia and Kimaiyo's remarks are not perceived as impartial advice. They can be and were perceived by many Kenyans as of assistance to one set of contenders in the elections. And as improper interference by civil servants in a political process. Both speakers made their remarks calculatedly, well knowing that they were illegal and unconstitutional.
They were insensitive to our great concern that civil servants never again be used by presidents to intimidate and influence voters in an election.
They have thus been insensitive to the painful electoral and police experiences under former presidents, and to the fact that this is no longer the Kenya of Kanu-past that they knew and grew up in professionally. They deliberately ignored the numerous provisions in the constitution that plainly say, "Kenya has changed". Their remarks show they have not changed with it.
Can they then be trusted in the next few weeks to place the constitution before any other consideration when they are faced with unpleasant choices between duty on the one hand and their personal preferences on the other. Or will they say, "I believe we should go with my preferences", as they did last week?
This is a highly relevant consideration. Firstly, because our past makes us concerned about its probability. Everybody does not see Kimemia as a non-partisan bureaucrat.
Many see him as part of the very elite which is the big and always hidden competitor in every constituency, and therefore an interested party with a political stake in its outcome. Secondly, because Kimemia is the chair of the Government Committee on the Assumption of the Office of President, and therefore highly influential in deciding on the swearing In.
Already, in that task too, he has shown the same defective approach. Kimemia has already announced that the swearing in will be at the Moi Sports Centre Kasarani. "Kimemia said that those aggrieved with the choice of the venue can raise their objection through a memorandum to his committee" (The Star, ibid).
Kimemia is again in error. Once again he disregards the new constitution's approach. He can no longer take a decision first and then call for consultation. The new constitution requires the opposite : consultation first and then a decision that genuinely takes all views into account, per Arts.10(2)(a), 94 and 118, constitution.
There are several different views about the choice of a stadium that holds many more but is also many more miles closer to Gatundu and Kiambu in a disputed swearing-in like last time's, with memories in mind of the presidential departure from the Russian Hospital, Kisumu in 1969.
Old habits die hard. We are in danger of having a future made by unelected civil servants in favour of one side.