DEVOLUTION

I’ve thought about even gave it some time to fuse in my mind but I still couldn’t see a better solution to all crisis present in our government. The absolute power that cannot be questioned among few individuals, the terrible extent in corruption, the check and balances in the three pillars of government not leaving behind lack of transparency in the whole governing system are some of the few riddles we cannot solve.

Speaking my mind I see ‘Devolution’ as the only possible and inevitable system to be employed in our blessed country. Devolution which in other term could be describe as the simplification of Government into small manageable  Governments that are in County levels chaired by the senator who is a member of the senate assembly. Devolution in a larger context means the whole breakdown of power into the hands of people themselves, this means bringing the government closer to people. One of the well devolved governments of all times is the structure of the United States of America and currently Kenya empowering the new constitution gave room for a devolved Government made up by forty seven counties.

One of the key advantages of this system is that people could be able to divide and utilize the resources we have. The residents of a resourceful area will be first to receive fruits of their work in preserving the resources. For instance the community around a resourceful like a lake or mountain and valleys should be benefiting by having a given projects to develop the people of that area or using effectively the advantages of the resource either in fishing, agriculture, tourism or any other commercial activity that we’ll add income to the local people of the area thus fostering development. According to the Kenya constitution 2010, cap 11, article 174 there establishes the Objects of Devolution that are:-

•            To promote democratic and accountable exercise of power
•            Fostering National unity by recognizing diversity
•         Giving power of self-governance to people and enhance the participation of the people in the exercise of the powers of state
•   To ensure equitable sharing of national and local resources
•     To facilitate the decentralization of states organs, their functions and services from the capital
•  To promote social and economic development

Counties having given power as governments thus County governments will have power to form laws that are different to other counties as long as they are not inconsistent with the supreme law, The Constitution. This will empower County governments through making better laws and policies that will make one county develop highly that other county depending on the resources availability for I see it unfair a place enriched with minerals, water bodies and every kind of natural resource be the least to develop, even its residents are in deep poverty that cannot be described by a whole written book. In the 2010 Kenya constitution, article 185(4) says that the county assembly may receive and approve plans and policies for:-

• The management and exploitation of the county’s resources and
•  The development and management of its infrastructure and institutions.

 This will restrain some few individuals who are hungry to take what is left for us and what is for the betterment of all the community.

One of the likely defects that one may point out in this system of devolution is in the case of boundaries of the counties. In case of a conflict regarding the boundaries of the counties I do suggest that an independent commission to be formed for that purpose as Article 188(1) of the same says that county’s boundaries matter must only be resolved by an Independent Commission set up for that purpose by the parliament and passed by the national assembly and the senate with not less than two third (2/3) of all members in each house.

I am very optimistic about a greater change, a change that will put Tanzania my blessed Country in the economic map of the World by being one of the developed countries in Africa and the world at large, but all hopes I have will not be achieved if a move will not been made from this day, this moment and this time so as to have a fruitful future

By Oscar O. Mutaitina,
LL.B student at The Catholic University of Eastern Africa

JUDICIARY INDEPENDENCE

The doctrine of separation of power as currently imitated by the three arms structure of the Government was first spoken by early legal scholars like Montesqueiu, John Locke and many others. Like for Instance Montesqueiu pointed that the division of Government into three organs is to separate power and ensuring checks and balance in the organs for every organ has a traditional duty either to make, interpret or enforce the Law. If that so is true which I think you will agree that the Judiciary as an organ and not only an organ but a crucial body of the government needs not to be bounded, needs not to be chained in the absoluteness of oneself.

Like how John Locke in 1609 pointed that power must be limited and must be controlled, meaning also that powers concentrated much on one individual or a mini group is unfit and may harm personal rights and protection under equal Justice. The greatest powers ever granted to the presidency to elect or rather choose Judges and other senior Justices is more than any power ought to be granted to the Executive as an arm of the Government.

The reason for my motion is simply that the key traditional approach of Governmental Structure which we comply with does not allow delegation of such vast powers like ‘the power to elect or remove a Judge from the office’ by the President. In our current Constitution we can clearly observe the vast power given to the Presidency over the Judiciary, Article 109 shows how the president may elect Judges of the High Court in which their number is not less than thirty individuals. Apart from that all members of the Judicial Service Commission are elected by the president as Article 112 s(1), (2)a, b, c, d and e and s(3) highlight that the Commission to be comprised with CJ as a Chairperson, AG, Justice of Appeal, Principle Judge and two members appointed by the president. If a sound minded person will observe this commission one can visibly see that the whole commission is elected by one person, that in first instance is not only dangerous for the exercise of the rule of law but also the appointed members may work in the interest of the Appointer.

From the fact therefore, for a better governing and a proper separation of power among the arms of the Government then a free and nonalignment commission needs to be formed by the civilians themselves employing intellect members from the legal field that are not part of the Judiciary itself but will be independent in making decision and resolving any disputes arising.

A good portrait of this is found in the Kenya Constitution 2010, Article 160(1) says that the judiciary should not be subject to the control or direction of any person or authority rather than the constitution. Also on the Issue of appointment of Chief Justice, the Attorney General and all the Justices must be confirmed by the Judicial Service Commission of Kenya and later on being given life by the National Assembly as Article 166 s(1)a and b clarify. This should also be in the case of removal of the Judges from office which also should be done in conformity with the Judicial Service commission.

Nailing it down a change is ought to be made for even the functions of the Judicial service Commission as expressed in Article 172 of our Constitution cannot be executed efficient since all the members being choose by the president have no sound or rather fully power over decision making as the body itself is not independent in its nature of formation.

By Oscar O. Mutaitina,
LL.B student at the Catholic University of Eastern Africa.

THE KATIBA REVIEW

The constitutional review Act being given life by the Parliament in the year 2012 has proven to be one of the chains holding many individuals from enjoying their privilege and right of expressing themselves for the sake of a better and valid constitution that is total by the people and for the people.

Many critical legal scholars have tried to construe the rationality behind enacting the new constitution. One of them is Prof. Issa Shivji, a law professor at the University of Dar es Salaam. He pointed out a deferent reason and a rational one as to why Tanzanians need to enact a new constitution. His answer has roots in the traditional approach as whom the constitution governs? And it’s simple, since we all know that the constitution governs all people in a given territory and all states apparatus and organs as it is the supreme law of the land.

From this foundation it should be known that if the constitution is the supreme Law of the Land and everything else is subject to it as Cap 1 s(2) of the Kenyan Constitution 2010, empowers the constitution of the Kenya being the supreme law of the land by speaking on its self like in possession of own soul. Nailing down the fact there was a case of Samatta CJ v. Attorney General, 2001 EA 485 in which Honorable Justice said that the constitution is a living instrument having its own soul and consciousness. The root of this philosophy is traced as far as Montesqueiu period in 1740’s before the publishing of ‘The Spirit of Law’ in 1748, from this base the Constitution then is to be enacted by the people as the Law made will be above all and that makes it not right for only a few group of people to enact the whole body of law which is the key in all governing process.

Leaving some minor reason as the constitution being old or as many would have say that, it has been amended a lot which I think is also very common in all the earthly constitutions, even the said best constitution of the United States of America has got some in it. But the real reason for the enactment of this new constitution is that the current constitution was enacted by a group of few Individuals of the ruling party of that time and it was not the views expressed by the Tanzanians as whole but by few individuals who were not even blessed with permission from the people and that’s what is claimed to be the reason for the enacting of a new constitution.

By Oscar O. Mutaitina,
LL.B Student at The Catholic University of Eastern Africa.

"Knowing is not enough;we must apply it. Willing is not enough;we must do " Johann Wolfgang von Goethe

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