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Bill is faulty, says Kamau Kuria

NAIROBI, Kenya, Dec 9 – With the Constitution Amendment Bill of 2008 due for debate in Parliament, experts are now warning of a serious legal crisis in Kenya if the House is allowed to violate the same laws it is supposed to protect.

In an article published on the ‘Opinion’ section of this website, lawyer Gibson Kamau Kuria has expressed discontent in the way the legislative organ is ‘purporting to effect reforms without regard to the constitution’.

Mr Kuria says that if parliament disbands the Electoral Commission of Kenya (ECK) by way of an amendment Bill, it would be tantamount to ’a restoration of constitutional dictatorship’ which Kenyans banished close to two decades ago.

“If passed, the Constitution of Kenya (Amendment) Bill, 2008 will restore in Kenya the constitutional dictatorship which Kenyans banished through the 1990 and 1991 constitutional reform rallies, the 1990 Constitution of Kenya (Amendment)(No1) Act and the Constitution of Kenya (Amendment) Act, 1991 which restored political pluralism,” Mr Kuria wrote.

He added that the approach would ‘show lack of confidence in Kenyans and judicial institutions, thereby amounting to both ‘moral and intellectual arrogance on the part of Parliament’.

Mr Kuria argued that the move not only sets a bad precedence but goes against the principle upon which constitutions are made besides eroding the principle of the supremacy of the people over elected leaders.

“If the Bill is passed the constitutional principle of supremacy of the people over the elected leaders which is the litmus test of democracies will be banished from Kenya.  The constitution thereafter will express the will of the rulers, not the ruled, contrary to what makers of the constitution intended,” he said.

He held the opinion that constitution review should be people-driven meaning it should be subjected to a referendum to ensure the will of the people is upheld.

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Mr Kuria said: “The Bill rejects this truth.  It is based on the view that every institution of government will exists at Parliament’s will, not by virtue of a mandate given by the people themselves who constitute the higher law.”

The lawyer faulted the Bill for borrowing from the parliaments of Ceylon and India which, he said, attempted to solve constitutional crises in the countries in 1962 and 1975 respectively.

“In India after the nullification by an election court in 1975 of the election of Prime Minister Indira Gandhi the parliament passed the 39th Amendment and through it overturned the nullification.  It usurped the power of the judiciary.  The draftsman or woman equated Kenya’s post election crisis with the crises of Ceylon and India,” the lawyer said.

To him, Kenyans are safer retaining the current constitution under which Parliament’s power is limited instead of having a new constitution under which the legislative power will be unlimited and no Independent Electoral Commission, Judiciary, Public Service Commission, an independent Attorney-General and auditor and controller- general would exist as proposed by the Bill.

In his words, the Bill is based on heresy, and therefore Parliament is asserting a power to remove the ECK in a manner not authorised by the same constitution.

He said the proposed section (47A) to facilitate completion of the constitution review is based on contradictory principles and regretted that in the proposed amendment to section 60 of the constitution Parliament is asserting a pretend power to establish a parallel temporary High Court manned by judges who are appointed in a manner not authorized by the same document.

He revealed that through the Bill, parliament was attempting to reform the electoral commission which is established by section 41 of the constitution and to provide for the completion of the constitutional review in two ways: First by affirming that the Kenyans have the right to replace the current constitution with another and secondly by establishing a temporary, parallel High Court to be known as Interim Independent Constitutional Dispute Resolution Court to adjudicate on the disputes which would arise during the review.

He said: “The new court will take from the current High Court the judicial function of interpreting the constitution which it has performed since 1964.”

Mr Kuria’s remarks come against the backdrop of an accelerated move to institute radical reforms beginning with ECK which has been blamed for the post December 2007 ills.

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