Like the Bomas draft and the Lancaster House Constitutions, the new Kenya Constitution could be in shreds before long. Already, the Executive together with the Legislature have selectively identified certain clauses for palatable amendments to the one-year-old supreme law.
August, as an election date, is not tenable because it is not in tandem with the budget cycle the Cabinet alludes, while the lawmakers also claim that their five-year term would be cut short by four months if the polls are held then. These arguments do not hold water, are devoid of logic and selfish.
In 1983, elections were held in August in which I and purported supporters of the one-time powerful Attorney General, Charles Njonjo were purged from Parliament and the Cabinet. There is no evidence to demonstrate then and now that that particular election interfered with the budgetary debates then.
The MPs ought to be reminded there was no election date in the old Constitution neither were the elections tied to the budgetary deliberations otherwise the 1983 elections could not have been taken place. Until recently, the president had the power to prorogue Parliament any time and call elections. If we have to go by the argument of MPs, then people chosen in by-elections should not face an election before five years are over.
Amendments introduced in the Legislature to the Political Parties Bill exempted Members of Parliament from the constitutional ban slapped on State Officers from holding party positions. The MPs claimed that they are not appointed State Officers but elected. Well put, but what happens next year to Cabinet Secretaries appointed from a political party background?
Every Kenyan, according to the new Constitution must pay tax but lawmakers have resisted and instead agitated for the adjustment of their salaries to meet the tax arrears demanded by the Kenya Revenue Authority. This action smacks of malice as it defeats the letter and spirit of the yet to be established National Remuneration Commission under the Constitution. The Commission will set and adjust salaries of all public officers including those of MPs. Parliament adjusts MPs salaries any time they deem it fit to do so.
Unknown to many, any new Constitution has its share of casualties and sacrificial lambs. Members of the Executive and the Legislature should under no circumstances be an exception to the rule or special. Security of tenure notwithstanding, the Attorney General, the Chief Justice and Anti Corruption Commissioners are no more as the constitution demanded. The Police Commissioner is also on the way out.
On August 4, 2010, Kenyans in their millions voted for the new Constitution in a referendum and 23 days later promulgated the same in a colourful public ceremony presided over by none other than President Mwai Kibaki. Little did the anxious voters know that some of the honourable guests at the ceremony would soon turn round and shred the work of the Kenyan people with unmatched impunity.
The so called contentious issues that have since emerged are figments of political leaders’ imagination and habitual flimsy excuses to mutilate the document reminiscent to circumstantial changes made in the ill fated Bomas Draft and the Lancaster House Constitutions respectively.
However, the doctored Bomas draft was rejected in an illegal referendum and the messed up Lancaster House document prompted disillusioned Kenyans to take to the streets to demand for reforms amongst them, a new Constitution that they heartily welcomed only to encounter betrayal. Come next year, Kenyans would not recognise the Constitution they enacted because of fresh and frequent issues raised on the document at the implementation stage.
The Parliamentary Select Committee on the Constitution (PSC) had ample time to scrutinise the harmonised draft and make desirable changes before handing it back to the Committee of Experts (CoE). After weeks of deliberations, the PSC convinced itself that it had done a good job on the document. Even before the document was taken to the referendum, Parliament also met in a plenary to peruse the document clause by clause.
How come that members can now detect flaws in the Constitution which they could not at the formation stage. Even the most stupid cannot be convinced that the MPs did not notice the flaws in the draft in those lavish retreats.
The tenth Parliament, a beneficiary of a fraudulent election, should count itself lucky for escaping the dissolution after the promulgation of the new Constitution or when the Kriegler Commission questioned the credibility of the 2007 elections. The Commission recommended the disbandment of the Electoral Commission of Kenya (ECK) for bungled polls which Parliament did with haste.
Somebody somewhere slept on the job and who is this? The lawmakers of course. No better words can describe the action of MPs on the constitution implementation but it is safe to conclude that it a glaring example of impunity.
(The writer is a former Cabinet Minister and Secretary General of the former ruling Kenya African National Union party. Email [email protected])