, NAIROBI, Dec 9 – Through the Constitution of Kenya (Amendment) Bill 2008, the parliament is 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 will arise during the review. The new court will take from the current High Court the judicial function of interpreting the constitution which it has performed since 1964. It is a kind of constitutional court of the kind that exists in Germany, France, Italy and South Africa. Similar constitutional courts were established in Eastern Europe after the fall of communism.
The reform of the Electoral Commission takes the curious form of removing all the commissioners from office without following the procedure for removal set out in section 41 (7) of the constitution and replacing them with two temporary commissions known as the Interim Independent Electoral Commission and Independent Boundaries Review Commission. The Bill reflects a worrying expression of lack if confidence in Kenyans in general, the Kenyan judiciary and the electoral commission and moral and intellectual arrogance on the part of the parliament of the grand coalition.
As I demonstrate below, history is about to repeat itself in Kenya in a sad way. Noble goals are being sought to be achieved unconstitutionally.
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. The 1990 constitutional amendment restored to the Judges, Members of the Public Service Commission, the Attorney-General and the Auditor and Controller-General secure tenures which constitutional amendments passed by the 6th Parliament in 1986 and 1988 had taken away.
Again, 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. The Bill also goes against the principle embodied in many constitutions today- that in addition to the division of state power amongst three organs, namely the legislature, the judiciary and the executive, that power should also be allocated to many independent commissions. The Bill rejects this truth. It is based on the view that every institution of government will exists at the parliaments will, not by virtue of a mandate given by the people themselves who constitute the higher law.
Upon perusal of the Bill a student of democratic constitutions concludes that the draftsman or woman borrowed wrong ideas from the parliaments of Ceylon and India which attempted to solve constitutional crises in these countries in 1962 and 1975 respectively unconstitutionally. In the former, after an attempted coup d’état in January 1962 the parliament passed Acts of parliament through which it usurped the power of the judiciary in March 1962. It changed criminal laws and also the law of evidence in preparation to try suspects. The court held that these laws amounted to judgments which the parliament had passed on suspects, contrary to the constitution.
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. However he or she does not appear to know that the India and Ceylon judiciaries nullified the relevant Acts of parliament. He or she has created a historic moment for the affirmation of the rule of law by the judiciary in Kenya the way the Commonwealth judiciaries have done.
Kenyans want to strengthen the rule of law through the completion of the constitution review democratically. The remaining review must be people driven. Kenyans should retain the current constitution under which the parliament’s power is limited instead of having a new constitution under which the parliament’s power will be unlimited and no independent electoral commission, judiciary, public service commission, an independent attorney-general and auditor and controller- general will exist as the Bill wants to be the case.
That Bill is based on a heresy- that in a democracy of which Kenya is one, the parliament is supreme-not the people. The heresy is being propagated by the Grand Coalition’s parliament which Kenyans elected last December, 2007. Through the Bill the parliament is claiming that it has greater power than those who elected it!
All the proposed reforms contained in the Bill are informed by that heresy as the following illustrations from it show:
(a) Parliament which is as much a creature of the constitution as the Electoral Commission is, is asserting a power to remove the commission in a manner not authorized by the constitution itself; the Parliament is established by section 30 of the constitution whilst the Electoral Commission is established by section 41 of the constitution; according to section 41 of the constitution, all the Commissioners enjoy a secure tenure; they like Judges, Members of the Public service Commission, Controller and Auditor General and the Attorney-General can only be removed from office by an independent tribunal appointed by the President which finds them guilty of wrong doing and recommends their removal; no tribunal has been set up to investigate the conduct of the Commission since the last general election; under the Bill the parliament is usurping the power of the tribunal and without giving the Commissioners a hearing removing them from office because they allegedly misconducted themselves during the last general election; if the Electoral Commissioners are removed by parliament that way, a very dangerous precedent will be established and the Judges, the Controller and Auditor-General will be the next to be removed from office by Parliament through similar constitutional amendments; the Bill is seeking to alter fundamentally the character the Republic of Kenya; it does not have the power to do this. The amendment is like those of 1986 and 1988 which took away the tenures of the Attorney-general, the judges, the Controller and Auditor–General and members of the public service commission; see the Constitution of Kenya (Amendment) Act, 1986 and the Constitution of Kenya (Amendment) (no. 4), 1988; as a constitutional court held in 2004 in the Njoya case, the power of the parliament in Kenya is limited; the parliament has no power to pass constitutional amendments which either destroy the constitution or alter its basic features; the Bill will destroy the constitution completely; after the 1986 and 1988 unconstitutional amendments people put very great pressure on the Parliament to restore the tenure to all these people and this was done in 1990 through the Constitution of Kenya (Amendment) Act (No. 17) 1990; the draftsman or woman of the Bill does not appear to know that after the Ceylon and Indian parliaments passed similar amendments the judiciaries of the two countries declared these null and void; in Liyanage –v- Attorney-General (1966)1, All. ER, 650 the court declared to be null and void Acts of Parliament which amounted to judgments passed by the Ceylon Parliament against suspects following and attempted coup d’état in January 1962; the proposed amendment will be in effect a judgment against the Commissioners by Parliament acting as if it were a tribunal appointed by the President to inquire into alleged misconduct of the 2007 general election! Through the Bill Parliament is lying to Kenyans by claiming that the new electoral commission to be known as the Interim Independent Electoral Commission will have a secure tenure in that its members will be removable by a tribunal despite the fact that it is not following the identical provision in the current constitution! In India after an election declared to be invalid the election of Prime Minister Indira Gandhi as a member of Parliament, the Indian Parliament passed a constitutional amendment which purported to validate her election. See the 39th Amendment of the Indian constitution. The Supreme Court of India nullified that amendment holding that the power to adjudicate on election disputes was vested by the constitution in the judiciary and that the amendment went to the basic structure of the constitution which could only be affected by the Indian people-not their Parliament. Today India is the largest democracy in the world because the Judiciary has acted as the true guardian of the constitution it was designed to be by the makers of the India constitution between 1946 and 1949;
(b) the proposed section 47A to facilitate completion of the constitution review is based on contradictory principles namely, (i) the one accepted by every democracy-that the power to write a constitution belongs solely to the people; see section 47(2)(a) which states that “the sovereign right to replace this constitution with a new constitution vests collectively in the people of Kenya”, and (ii) the heresy that the Parliament has the same amount of power as the people in the making of a new constitution and consequently it has power to alter a draft constitution agreed by Kenyans through a democratic process; see aection47(A(2)(b); the Parliament is asserting a power to change the draft constitution to suit its interests; it wrongly assumes that it is wiser than the people who elected it! the truth according to every democratic constitution, practice and logic is that members of Parliament according to the English language are agents or servants of the people who are principals or masters; the servant cannot wield more power than the principal or master as the Parliament is trying to do;
(c) 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 constitution and to do the very work –constitutional interpretation which since 1963 has been done by the High Court; two qualities of justice are being introduced in the Republic; there will be no right appeal to the Court of Appeal against the decision of this temporary parallel High Court which is assumed to be supremely wise; the temporary parallel High Court is to be called Interim Independent Constitutional Dispute Resolution Court and will perform the task which the constitution has allocated to the High Court!; it is politicians court to protect their interest; under the current constitution Parliament has no power to establish such a court; even if passed that Amendment will be null and void; Judiciary, like the parliament, is a creature of the constitution or the people; it is an equal branch of government to the Legislature or parliament; the makers of the constitution established a hierarchy of courts which did not go with a temporary parallel High Court; section 60 of the constitution provides that there shall be a High Court which shall be a superior court of record and which shall have unlimited original jurisdiction in civil and criminal matters and such other jurisdiction and powers as may be conferred on it by that constitution or any other law; appeals from its decisions lie to the Court of Appeal in civil and criminal matters; the outrageous philosophy of the amendment is that Kenyans and their judges are a second rate human beings with no ability to handle disputes which arise in the course of making the constitution. This Interim Independent Constitutional Dispute Resolution Court is based on the notion of constitutional court to be found in such European courts as Germany, Italy, and France and also in the Republic of South Africa.
Outside South Africa, the constitution court is not to be found in the Common law systems of which Kenya is one. These systems loathe the very idea of a court outside the system. In 1976 a special guns court established by the parliament of Jamaica was declared unconstitutional. During constitution making in South Africa there was no such Interim Independent Constitutional Dispute Resolution Court. The role of that court was merely to confirm that the draft constitution conformed to 34 constitutional principles which the makers of the constitution had agreed upon. No democracy has used such an institution during the constitution making.
What Kenya needs are Bills which stay within the parliament’s allocated power. The government has the choice to either withdraw it or have the greater part of it which unconstitutional so declared by the courts after the Bill is passed.
The issues which the Bill raises will also be raised by the Constitutional Amendment Bill which will be used to establish the Special tribunal for Kenya which the Waki Commission recommended be established through a “statute”.