Behind the adjourned National Constitutional Conference (NCC), a Committee of Experts on Constitution Review has been formed by the Legislature to fine tune and consolidate the existing parallel drafts. In contravention of the rules of procedure and the oath of allegiance, the Executive colluded with the Legislature and re-opened the sealed final draft for circumstantial amendments. Consequently, the adulterated document was rejected in a referendum in 2005.
Since inception, the Committee has been receiving pre-emptive boring written presentations from parliamentary political parties on the system of government Kenya should adopt in the new political dispensation. Party constitutions are in no doubt not democratic documents and are in perpetual conflict with the supreme law.
It comes as a surprise therefore that the leaders of the same parties and chauvinists can turn round with new proposals on the Executive when some walked out of the NCC venue in 2004 over the system of government the country should adopt.
The proposals by none of these ideological parties are for and against parliamentary, presidential and to a lesser extent, the cumbersome hybrid system that exists in Kenya today. In the hybrid, the President is the Head of State and Government at the same time, a complete departure from the mixed Westminster and the US models we claim to have borrowed from.
Under the system, a minister who is also a Member of Parliament cannot table a Motion or ask questions regarding his constituency in Parliament. The only thing a minister can do to retain the grassroots support is diversion of the State resources to his or her constituency or that of the appointing authority.
A party with the majority in Parliament forms the government in the Westminster model and the party leader becomes the Prime Minister with powers to preside over Cabinet meetings and appoint ministers amongst elected legislators.
In the US model, the presidential candidate is chosen by party caucuses to meet a challenger in a universal suffrage de-linked from the national and local elections. The President and the Cabinet are not members of the Congress or Senate. The numerical strength of parties in both chambers do not affect the day-to-day administration of the government.
Post apartheid South African cocktail that is a political success story in Africa is hardly mentioned or considered by introvert party barons in Kenya. Parties sit as an electoral college to fill their allocated slots in Parliament in proportion to the votes cast. The sponsoring parties have the power to recall non-performing and wayward legislators. The elections that have been held in the country that emerged from years of racial segregation have surprisingly been peaceful as opposed to Kenya’s chaotic polls.
The ruling African National Congress (ANC) surprised doomsday prophets in the emerging democracies when it de-whipped President Thabo Mbeki in one of the biggest democracy tests in Africa. A recall clause amongst other "unpalatable" clauses was expunged from the Bomas draft on the unanimous decision by the Legislature and the Executive.
Elected leaders are not agents of change and should be the last to propagate change of a system at this point in time. They know of one, have one that serves and has served them better all the years. At no time in history did the lawmakers challenge, change or suggest improvement on the existing system that relegates Parliament to a surrogate of the Executive.
The Committee would do Kenyans a lot of good by scrutinising the proposed changes by leaders and compare with those they made in the Bomas Draft and other drafts. The process should be an inclusive event in which the surviving Lancaster House Constitutional participants, civil society organisations, private sector and the general public views are taken into account.
Cognisant of the fact that successive governments have for one reason or another failed to deliver a new constitution, the civil society organisations should rise up to the challenge and save Kenya from its perennial problems.
Attempts to have a new a constitution have been elusive. It cost the then ruling party, Kenya African National Union (KANU) stranglehold on power, the National Rainbow Coalition (NARC) disintegrated and the newfound broad based coalition may become a casualty of its own pledge.
In light of the foregoing, political leaders and chauvinists should be distanced from fine tuning the drafts.
(The writer is a former Member of Parliament, Cabinet minister and Secretary General of two major political parties. Email kamothojj@gmail.com)
About The Author
