Enough is enough, Kenyans say

August 11, 2009 12:00 am

, The confidence in leadership has been eroded beyond comprehension and patience is running out after successive governments conspired to defraud Kenyans their inalienable right to get a new constitution in   a period of 17 years.  Media polls are not saying anything different.

A year  is gone  since  the  coalition  government promised  the  delivery of the  supreme law  in one of the many false promises to the   gullible population. The  coalition government  predecessor, National Rainbow Coalition  (NARC)  ascended  to the throne  on the platform of reforms  including  delivery of  a new constitution within 100 days  upon assuming office.

There is always a constitution moment and there have been such moments yet Kenya has squandered all of them. The National Dialogue under Kofi Annan lost a golden chance  that Kenyans could have lived to remember.

Delivery of the Bomas draft could have preceded the formation of the present coalition government that resembles an ad hoc administration. President  Mwai Kibaki  on his second  and last term as Head of State and government  together  with his  bitter political adversaries seem to be in agreement  that the term of  the present government should  end   without the  delivery of the supreme law and other proposed  reforms  in the  Accord. The constitution’s operational date invalidates the existence of constitutional offices including parliament.

A person in authority cannot preside over a meeting that purports to remove powers that almost equates a leader to God. This is no exaggeration. The Cabinet recently failed to agree  on the  law  to  form a  local tribunal to try the perpetrators of  post  election  violence  because the  Bill  sought  to remove prosecution  immunity  from the  president  and  his  ministers. It is  now understandable  why the  Legislature and the Executive  conspired  to reopen  the first  draft Kenyan  constitution behind Kenyans  for  amendments  to suit the  ruling elite. 

The Executive on the other hand is not comfortable ceding part of its authority that is currently vested in one person, the president. The government and State – being one thing – has done more harm than good to governance.

Parliament’s role should be legislation and vetting all public service appointments proposed by the Executive. Parliament initiates reforms elsewhere but fails to realise that the institution needs reforms than any other.

In view of that important role to be played by a State organ, its members should not be appointees of the Executive. Kenya became a multiparty 17 years ago after campaigns for the restoration of checks and balances in all institutions. These checks are selective and exclusive.

Among the issues the Committee of Experts on Constitutional Review should look into are the separation of powers of the three State organs and other constitutional offices.

A constitution worth the title is one that meets the expectations and is there for posterity. Such  a document  may not be forthcoming  without the  collective political will and  elected leadership  and  its  ilk  distancing their  interests from the  process.

Without  a comprehensive Bill of Rights and  devolution  of the  economy and  decision  making, the constitution  would not be worth the  paper it is printed on.

The legislature that is supposed to midwife the process is not prepared to ratify a constitution that creates a second chamber and the National Remuneration Commission. A multiparty system with a monolithic chamber cannot boast of democracy when modern and model democracies have more than one chamber.

The independence of the Judiciary and the Electoral Commission is in doubt. The Judiciary and other constitutional offices  cannot  operate  independently  and impartially in a situation  where  they have to  beg  for   funds  from the  Executive that  appoints them. Constitutional cases   and those against constitutional office holders currently handled by ad hoc courts should be handled by a Supreme Court.

Similarly, now  that  political  parties  are  being funded  from the Consolidated  Fund, members of Parliament  some of whom are members of the  Executive  should  be banned  from  holding party positions and  ministers  should be  appointed  outside the  Legislature.

A constitution making process is such a sensitive and a delicate exercise that requires men and women of integrity and sacrifice. It has brought down governments and one cannot expect it to be delivered in peace time as the Kenyan leadership would like the rest of the population to believe.

The  marriage  between  Liberal Democratic Party (LDP)  and  the  National Alliance  Party of  Kenya  (NAK) had to be terminated  after  the  former  trounced the  government in  a referendum  conducted over the doctored Bomas draft  constitution in 2005.

The KANU government was hounded out of office in 2002 because of failure to   deliver a draft it promised for 10 years. It is  seven years  now  since  another   promise  was broken by   NARC,  KANU’s  successor and there  is  no hope  of getting  one  soon.

(JJ Kamotho is a former Cabinet minister and secretary general of two main political parties including the former governing organisation, KANU. Email: [email protected])  


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