It has been quite disappointing to watch the recent election debate that is all the rage, because it is clear that a vast majority of Kenyans to include politicians do not much understand the new constitution and are living in yesteryear.
The constitution of Kenya that we passed in 2010, was the culmination of years of struggle and the surest opportunity for a new beginning. Listening to the justice minister, IEBC chair, CIOC chair, Martha Karua, Gitobu Imanyara, Yash and Jill Ghai and CIC chair (all lawyers) with all their contradictory positions, one comes out with a headache.
This acrimony betrays the simple fact that Kenya lacks strong and visionary leadership. In the name of democracy, Kenyans are groping in the dark and feeling more confused by the day. What we must understand is simple; that it is no longer acceptable in the new order, to protect impunity or to hide behind statutes, laws and legal grey areas.
The way I see it, law is meant to serve man and not the other way around. Kenya is quickly degenerating into a legalistic society where everyone is all too willing to run to court for everything, or to explain everything away citing this or that clause in the constitution.
Soon we will have someone seeking judicial opinion on if it is legal for the president to be awake before 7AM! Members of Parliament are not citing the Constitution in their bid to stay on until whenever next year, because they are law abiding or virtuous but rather because it is in this case convenient and self- serving. But what Kenya needs at this time is a leader of Solomonic wisdom to point the direction and set the pace. That leader could be President Kibaki.
The Constitution of Kenya was a negotiated document, and that fundamentally should teach us that you cannot get something for nothing. To get, we must give. A plain reading of the constitution, at Article 136( a) states that there shall be an election of the president and parliament on the 2nd Tuesday of August in every fifth year.
We last had elections in 2007. Question is, are we in the fifth year? This August date was chosen by the CoE due to reasons such as school holidays, voters proximity to their work stations and the fact that in lazy December the propensity for violence logically increases. So the take-off point should be elections in August. That being said, it should be up to all of us as Kenyans and as government to do all it takes to meet these goals since all institutions and all peoples of Kenya are subservient to the Constitution.
It cannot be that a focused Executive and a purposeful Judiciary reading from the same script, independent as they may be can be defeated by a lacklustre, errant Legislature. Let us note at this point that the 10th parliament is a most unpopular one with Kenyans, and one that has stubbornly refused to pay taxes against public will, common sense, law and all logic.
It is noteworthy that the Executive and Judiciary pay their taxes. I posit, that the two arms of government in solidarity with the vast majority of Kenyans can contain this wayward parliament and work towards a tidy simulated transition between this regime and the incoming one first by ensuring elections are held in August, allowing sufficient time for run offs and any unforeseen complications leaving room for President Kibaki’s clock to wind up right on time and even compensating MPs (a thing they love most) for any dues lost on unexpired term.
Worst case, to short circuit parliament’s miniscule remaining term for the entrenchment of the Constitution and accurate setting of the election timeline for future generations is a small price to pay and a courageous move. Let government put all resources and time into ensuring the IEBC can pull off a neat and grand election rather than making excuses and lamentations while risking spillage of the incumbent coalition government (which should have been a temporary transitional organ in the first place) into late next year setting an awful precedent and holding Kenyans at ransom in the name of “rule of law.”
Kenya needs bold and courageous leaders to usher in the new Constitutional order, not lawyers, bureaucrats, sticklers, experts and litigants. To reset the clock, let the powers that be consider the spirit and intent of the drafters of the constitution and “ignore” the transitional clause 9 and 10 that was inserted to appease MPs and woo them to pass the document. Endless politicking and legalese will keep us all going round in circles until Kingdom come.
The writer is the Director, Organization for National Empowerment (ONE) a Civil Society lobby group.