, 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])