BY JOSEPH KAMOTHO
Had the harmonised draft Constitution been enacted in its original form, then the major beneficiary of one of the clauses could have been the ordinary Kenyan.
As things stand now, the general public is the biggest loser in the new political dispensation. This is partly so because of political interests of major parliamentary political parties at a meeting in Naivasha.
Aware of prohibitive cost for legal services in the country, the Committee of Experts (CoE) saw the urgent need to facilitate the majority in denial of justice or have no access to legal services due to economic constraints.
Cognisant of the fact that a legal representation is a constitutional right of every individual enshrined in the Bill of Rights, the CoE created the post of Public Defender. The core functions were to provide legal advice and representation to persons who are unable to afford legal fees charged by private practitioners.
Ironically, the Parliamentary Select Committee on the Constitution scrapped the post of Public Defender in one of the far reaching amendments in the draft. It defeats reason and common sense that elected leaders could abandon constituents at their hour of need as evidenced in denial of justice for all.
The functions of the Public Defender have since been shifted to the AGs Office that boasts no record of protecting the public since its inception at independence. Section 156 (6) as revised by parliament states that the AG shall promote , protect and uphold the rule of law and defend the public interest. Even now, the public hardly benefits from the AG’s services. The AG is the Chief Legal Advisor to the government and asking the holder of that office to defend the public is a contradiction if not a case of conflict of interest.
Now the public have to make do with extortionate costs charged by legal practitioners in a country where the majority live below the poverty line on less than a dollar a day. It is the height of irony that Kenya boasts NGO’s and institutions that masquerade as defenders of public interest. Amongst them are the Kenya National Commission on Human Rights, the Ministry of Justice, Anti Corruption Commission, National Cohesion and Integrity Commission amongst others.
The manipulation and intrigues marred the parliamentary deliberations on the supreme law and still persists in the quest to implement the constitution ahead of next years general elections.
The Naivasha meeting took less interest in the welfare of the downtrodden but their own interests. In short, parliamentarians reluctantly participated in the replacement of the adulterated Lancaster House Independence Treaty rebaptised Kenya Constitution in the late 60’s. It is not in doubt that they benefited a lot from the inherent loopholes in the old constitution.
Few things lawmakers hate in the new Constitution are the separation of the Legislature from the Executive and the many checks and balances since created.
The document is revolutionary in content and spirit and above all, promises to tame impunity, level the playing field and reforms governance.
(The writer is a former cabinet minister and was secretary general of the one time ruling party, Kenya African National Union (KANU). Email: kamothojj @gmail.com)