The new constitution is not an end in itself; it is a means to an end that must not be treated as a stand-alone project. It only gives the tools and mechanisms to bring forth the desired transformation of the state. The people of Kenya must give it Life and teeth.
Kenya has a history of impunity. There have been many corruption and human rights scandals in the country. Recommendations by commissions of inquiry are never implemented and the perpetrators continue holding powerful public and political offices. Due to corruption and political patronage, public institutions have been forced to employ unqualified staff.
Promoting and consolidating the rule of law and democracy while dealing with country's efforts to dealing with the authoritarian past is challenging but it must be done. It is even more challenging especially where the change process is under the stewardship of those with track record of blocking change and/or responsible for overseeing gross violation of human rights.
Institutionalising change is a precondition for dis-mantling authoritarianism and successfully transforming state into constitutionally sustainable democracy. This is what the new constitution seeks to do. But if those implicated in past scandals are given the task of implementing the changes, then it is not yet Uhuru.
A democracy which replaces a dictatorship endangers its credibility and forfeits it altogether in the eyes of the dictatorship's victims when perpetrators go unpunished and the new democracy does not prevent these people by legal means from retaining their positions and further pursuing their careers.
In order to address this deficit, it demands for legal sanctions and vetting. It is primarily the preventive affirmation of civic virtues and the strengthening of democracy under new order. The new constitution ushers a ground-breaking new value and culture system and sets up radical framework for good governance and accountability.
One key condition of cleaning the public service and other offices is vetting the holders of such offices, not only judges but all public servants. This will ensure only hardworking deserving Kenyans remain in public service. Vetting is meant to breathe new norms, practices and values in the management of public affairs. It lays down roots without the danger that the people in high positions of power will try to undermine the new nascent emerging democracy. The aim is
not to punish people presumed guilty but to jealously protect the newly emerging democracy.
Vetting covers both recruitment or appointment and dismissal or removal of public employees.
Vetting may clash, however; with the principle of non-discrimination, as well as several rights of persons targeted. Rights that may be violated are: to hold a job in the public service in conditions of equality and without unlawful discrimination or unreasonable restrictions; to be protected from unlawful attacks on honour and reputation; to an effective remedy; to the presumption of innocence; to have one's case heard fairly and publicly by a competent, independent, and impartial tribunal; to equality before the law and to equal protection of the law without discrimination; and to work.
Vetting procedures are in principle administrative and preventive. They are not meant to replace criminal or punitive measures determining liability. A key issue in vetting processes is ensuring equitable procedures and procedural guarantees. The following criteria should be
kept in mind when designing a vetting process.
First, in order to have legitimacy, a vetting measure should respect the rule of law and human rights. Second, vetting should respect the rights of those targeted. Third, the process should not neglect objectivity, and therefore procedures should be based on objective and reasonable criteria. Fourth, all measures should be governed by law in order to avoid arbitrary application.
Fifth, it is important that vetting respect the principle of individual responsibility. Finally, vetting should be relatively autonomous and should be independent of criminal proceedings.
Procedures should allow for a phase of investigation and verification of a candidate's background by an impartial body, separate from the appointment organ. The candidate should be granted the right to respond to allegations and the right to a judicial remedy to challenge a decision. The investigation and verification body must allow a candidate or family to respond and have access to legal remedies, including appeal.
Vetting processes should be based on objective criteria, conducted by independent and impartial bodies and provide procedural guarantees to the persons concerned. Qualitative and quantitative participation, consultation and exclusivity are key.
The writer is Communication Associates, International Centre for Policy and Conflict.
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