BY JOSEPH KAMOTHO
“By virtue of the provisions of the Kenya Independence Act ,1963, Kenya will attain fully responsible status within the Commonwealth on 12th December, 1963. This order makes provision for a new constitution for Kenya from that date’’, reads a two sentence footnote in the original Lancaster House Order in Council tabled in the Legislative Council a week before independence.
Amid acrimonious exchanges, detentions without trial and dispersals on police horsebacks at one time or another, this self explanatory note answers the dream of anxious Kenyans 47 years later. The long duration taken to get a supreme law never pricked most political leaders save for the post election violence and intervention by the international community.
At long last, the Constitution made by Kenyans for Kenyans whose blood have been spilled, others perished and detained in the quest for favourable changes in governance was enacted on August 4, 2010 in one of the most peaceful polls in known history, save for few nasty exchanges between the proponents and opponents of the document.
The just concluded referendum campaign is one latest example in many that suggests that some Kenyans are not ready for change in peace time but would rather perpetuate one-man dictatorship under the guise of national unity.
The 2007 post-election violence and the international intervention accelerated the pace for the badly needed change which could have waited many years past the Golden Independence Jubilee celebrations due in three years.
Amongst other things, the new law restructures the notorious colonial outfit, the provincial administration that has been an impediment to change. The regional governments in the “independence constitution” never took off ostensibly because their roles allegedly duplicated or conflicted with those of the administration.
Retention of this cruel outfit long after independence was for ulterior purposes amongst them perpetuation of suppression of rights and freedoms of communities and individuals in areas of jurisdiction.
Forgetful politicians, who at one time or another were the subject of humiliation and intimidation by these uniformed brutes were the loudest campaigners for the retention of the provincial administration. Forty seven counties will replace the eight provinces in the devolved governance and economic structure.
Before minimum reforms were initiated by political pressure parliamentary political parties, the administration licensed political rallies and were also in charge of elections in which only politically correct individuals were pushed to parliament and other elective posts. Will the powerful provincial administration allow itself to disappear without resistance?
A clear separation of parliamentary and executive authority in the new political dispensation is a belated relief from mixed and conflicting roles. Ministers will be appointed from outside the legislature. Constituents can also recall non performing representatives. Another welcome change is the in-built checks in the bicameral legislature. Clauses creating the senate and advocating recall were erased from the Bomas draft and vain attempts to downplay the senate\’s role was ignored by the Committee of Experts (CoE).
Between 2003 and 2004 Kenyans congregated for the first time for National Constitutional Conference (NCC) at the Bomas of Kenya to make a new constitution but “special” delegates betrayed this noble course.
Behind other delegates, parliamentarians ganged up to doctor the final draft which voters rejected in an illegal and noisy referendum. Prior to that, the former regime ordered the police to disperse a similar gathering at the same venue diverse interests explain how slippery the road to a new law was.
The reluctance of post independence leaders to make a new constitution and formulate fresh laws for the people of a newly born nation explains volumes. Until recently known as, the Kenya Constitution, the Order in Council that bears ugly patches, derogatory clauses and the colonial statutes renamed Acts served the political class better than what we have today.
It is safe to conclude that leaders were interested in the flag independence rather than charting out a destiny for the nation that had undergone physical bush struggle against white settler rule. One leader remarked, there was no need of replacing this constitution with something radical and revolutionary.
It did not, therefore, surprise political pundits when some leaders and the Christian clergy were on the campaign trail for the rejection of the document and the reverse to the status quo.
In our midst, there are dreamers of business as usual who subscribe to the old order and hope that the same could be exported to the restructured administration. Kenyans are aware that all sorts tricks in the book could be used to manipulate the lesser mortals whose voices cannot be heard beyond polling stations. These fears are not without basis. A precedent to go by is in the foregoing brief narrative.
Betrayal cannot be ruled out in a journey to the implementation of the document that promises to make Kenya better. It should also be noted that the spirits of the forces that hijacked recent minimum reforms and the country’s independence are still alive and kicking. Over their dead bodies, would Kenyans initiate and embrace people friendly reforms.
For goodness and God\’s sake and for the sake of peaceful Kenyans, keep political wrangles out of the implementation of the new Constitution.
(The writer is a former cabinet minister and secretary general of two different national parties in his long political career in Kenya. Email: [email protected] )