Open letter to Constitutional Review Experts

June 13, 2009 12:00 am

, NAIROBI – Kenya is a multiparty state for 17 years now but political pundits wonder why the pluralism advocates delight operating monolithic systems in an open competitive setup. If the second liberation campaigners were sincere and serious, they should have also campaigned for the separation of government and state and re-introduction of a second chamber for purposes of checks and balances.

Evidence shows that most of the yesteryear campaigners for competitive politics were a power hungry lot previously locked out of competition and subsequent entry into parliament. Now that the critics are MPs, an idea that would disturb the status quo in the legislature must be shot down. This was aptly expressed at the National Constitutional Conference (NCC) deliberations at Bomas where MPs across the political divide expunged the executive structure and second chamber that could have served as checks. The doctored document was rejected in a referendum.

It dawns on Kenyans today that something is terribly wrong with the system of government the country has had for 45 years. Like the many experiments, the mixture of both the presidential and parliamentary known as hybrid has its shortcomings even with some of the ruthless amendments to sanitize it. Parliament is a club of political parties representing various parliamentary constituencies.

The majority party in Parliament produces a Prime Minister with the executive powers as the head of government in a parliamentary system. In Kenya, this system was abolished a year after independence and country settled for a mixture of presidential and parliamentary. The multiple roles of Head of Government, State and Commander in Chief of the Armed Forces were exercised by one person under the title, President.

Before these changes in 1964, the Governor General was the Head of State and Commander-in-Chief of the Armed Forces with no political role to play in the day to day administration of the government. To ensure checks, a non partisan and party less person should assume the latter role. In some societies, the president becomes patron of all parliamentary parties with the tenure of seven years starting and ending before a legislature term ends and begins.

In the circumstances, infiltration of state institutions including the military by a ruling party cannot be ruled out. The system is open to abuse because the party in power will do everything within its grasp to ensure that it retains leadership at any cost using state resources at its disposal. It goes without saying that in exercise of the functions of state, the President would not be fair to political opponents.

In light of this oversight, Kenyans are once again asking the Committee of Experts on Constitutional Review to do away with the hybrid, separate government from state and specifically state whether the new system is parliamentary or presidential and create a second chamber.

Many Kenyans, lay and professional concur that the general population should be schooled on the difference systems leaders have proposed so that they can make informed choices. Unfortunately, some of the leaders are not even in a position to explain whether we are in a presidential, parliamentary, hybrid or a coalition. Experts  should seek the  services  of the  civil society  to help educate  the masses on the  advantages  and disadvantages  of the  systems.  Kenyans want a foolproof system that would eliminate power brokers and freelance legislators in leadership.

The experts should not also lose sight that it is unlikely for a party to command a comfortable majority in parliament to form a government on its own. A coalition is unavoidable and that should also be captured and factored in the new document to avoid conflict that engulfs the nation today.

The judicial reforms should not also be left behind in the ongoing reforms. The country needs the Supreme Court to handle constitutional issues and disputes that are often referred to an ad hoc constitutional court constituted by the Chief Justice when the need arises.

(The writer is a former Cabinet Minister, Member of Parliament and Secretary General of two major political parties in Kenya.
EMAIL: [email protected])


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