NAIROBI, July 28 – Former Kabete legislator and constitutional lawyer Paul Muite is advising Kenyans to drop their bid to get a new constitution through a comprehensive review and instead called for piecemeal changes to achieve this desire.
Muite has cast doubt on the current unity government’s ability to achieve a new constitution during its term, let alone the one year pledged in the National Peace Accord that saw the formation of the new state.
“The Accord was signed on February 29, we are heading to August and no one is talking about the constitution. Not even the Prime Minister or President Kibaki upon whose legacy its fulfilment lies. Surely it does not require a lawyer to tell you that this process will not be achieved.”
Speaking to Capital News, Muite said that the Grand Coalition Government’s pledge to achieve a new constitution by April next year is not realistic since there is no political will.
“Is it possible that each of these presidential candidates in 2012 are themselves not averse to the imperial presidency and all the powers that go with it, and each of them secretly harbours an ambition to occupy that position?” he posed.
The lawyer suggested that the process would stall if the public did not get involved in the process and pushed their parliamentarians to deliver the review.
“Sometime the psyche of the Kenyan people towards the constitution reminds me of the warthog, which has the shortest memory in the world. When it is being chased it forgets why it is running; it stops and is grabbed. Kenyans have forgotten the events that happened in the first three months of the year but now it’s like we are waiting for the next political or social tsunami so that we start crying again.”
Muite, who chaired the Parliamentary Committee on the Administration of Justice and Legal Affairs that spearheaded the minimum reforms package during the Ninth Parliament, is now calling for increased reforms that address crucial institutions such as the Electoral Commission, Judiciary and Public Service Commission.
“Once we have fixed our institutions and have removed the over concentration of powers in one institution; the Presidency, the rest of it will fall into place.”
On the Judiciary, the former legislator is calling for financial autonomy, which would see the courts have a separate vote in the budget although it would have to be approved by the National Assembly.
Currently, only the judges’ salaries are drawn from the Consolidated Fund, while judiciary operations such as the maintenance of courts and acquisition of motor vehicles are still subjected to a budget given by the Ministry of Justice and Constitutional Affairs.
In 2006, Chief Justice Evan Gicheru called for the Judiciary to be given operational and financial autonomy, arguing that it was impossible to expect the Judiciary to perform separately from the executive while depending on it for funding.
Muite further suggests that district public forums be set up to discuss contentious issues surrounding land, the devolution of executive power and religion.
“We are using the force and might of the State to return the internal refugees without addressing the land issue, and we can only resolve the land issue through a new constitution,” he said.
The former MP said Kenyans must be allowed to debate contentious issues in the constitution that would be drawn up by a group of professionals before voting for it in a referendum.
Muite told Capital News that this would be necessary in order to give Kenyans some ownership of the final draft and avoid the polarisation that was witnessed in the run-up to the 2005 national plebiscite on the proposed constitution.
He stated: “The professionals can propose several formulas for devolved government and for sharing resources. You will need to involve the grassroots at some point to debate on it and bring back views on land issues, devolution and the Kadhi courts.”
According to the proposed ‘roadmap’ to a new constitution leaked to the media in June, members of the National Dialogue and Reconciliation team had agreed on a seven-member committee to revive the stalled process.
Parliament and the Panel of Eminent African Persons who helped negotiate an end to the post-election violence would pick the committee members. Four of the members would be recruited by Parliament based on their expertise, while the Kofi Annan-led team would name three, according to a document prepared by Justice Minister Martha Karua.
The team shall comprise experts in comparative constitutional law, systems and structures of democratic governments, land-related laws, electoral systems and designs for democratic elections, anthropology, governance, ethics and public finance.
The panel proposed that the team of experts be mandated to identify and separate issues on the Bomas draft that are not contentious and those that remain hotly disputed.
The Bomas and Wako drafts will act as reference documents for the exercise, although other useful materials will be consulted.
Muite cited the inclusion of Kadhi courts, land and devolution of powers as among the issues that should not be rushed, but rather debated by smaller regional forums instead of a constitutional conference.
“Devolved governance is about sharing of resources. When people talk about “Majimbo” really what they have in mind is the unfair sharing of resources. So that issue of resources and how many tiers of devolution we are going to have remain very contentious. That is not something that can be resolved by a group of professionals, it’s a matter for the Kenyans,” he expressed.
The constitutional lawyer thinks that Kenyans should be given a chance to decide on whether Kenya should remain a presidential system or adopt a parliamentary system, where the PM will have overall executive authority.
The former MP also says that the future of Kenya’s politics lies firmly in coalitions, which is better served by a Parliamentary system than the current Presidential system.
“This is because whoever is going to be elected President will find it very difficult to have a majority in that Parliament,” he said.
“I would rather that Kenyans debated the governance structure that they want and personally would urge that it is time we went for a purely multiparty system of parliament.”
Muite intimated that the hybrid system that is being experimented by the Grand Coalition Government could only work for the specified term.
He said future Presidents should be ceremonial with an Executive Prime Minister drawn from a party with majority seats in Parliament.
“Let the President be formal and ceremonial and his powers defined in the constitution, in which case you cannot subject him to a popular vote. He should either be elected in Parliament, an electoral college or something else, but executive power should be vested in the Prime Minister,” Muite offered.