Leaders need not fear the new law

January 8, 2010 12:00 am

, NAIROBI, Kenya, Jan 8 – If Kenyans fail once again to get a new Constitution, the Executive and the Legislature will share the blame. The two institutions have manifestly betrayed the trust and confidence of the population whose quest to chart out a national destiny has been thwarted by self greed.

Despite the shortcomings, the fate of Harmonised Draft Constitution still lies in the hands of lawmakers that are supposed to propose and table amendments before the legislature for approval before the Committee of Experts on Constitutional Review (CoE) puts final touches.  However, the conditions for the incorporation of legislative amendments are so stiff that a consensus is not possible in the tribally divided Parliament. 

It is in light of the abuse of Oath of Allegiance and opportunity to add value to the constitutional review process that conditions were to be set in the law creating the Committee out of the ashes of the post election violence that left many dead and several thousands displaced. The  changes  removed ambiguities  in the  Constitution of Kenya Review Commission (CKRC) Act that gave the  Ninth  Parliament a blank cheque  to  play  about  with the  Bomas draft that had to be  rejected  in an  illegal  referendum.

It also emerged that Parliament also participated in an illegality by getting involved in a referendum. Referendum is now legal as lawmakers are distanced from active participation in the replacement of a Constitution under which they were elected and swore to protect.

Section 47 (A)  states that the  sovereign right  to replace the Constitution  vests  collectively  in the people of Kenya  and shall  be exercisable by the  people in a referendum.  The  draft  Constitution replacing  the  Constitution  introduced  into  the National Assembly,  no alteration shall  be made  in it unless  such alteration is supported  by 65 per cent of the  votes  of  all Members  of Parliament.

Active participation in the previous process and subsequent reopening of the  document  for  amendments  were  fatal mistakes that  cost the  country  dear in one  of the  unforgettable  acrimonious  campaigns. These ugly events in the referendum campaigns spilled into the 2007 General Election that turned chaotic and bloody. Lessons from the post election violence never pricked the political class and their cronies.

Time and again, members of the Executive and the Legislature have been reminded of their governance and legislative roles outside the Constitution overhaul. Legislators as the guardian angels of the sacred document cannot act as chief campaigners against the same under which they have served for nearly half a century.

Long before the first process took off in 2003, political pundits sounded alarm bells on the conflict of interest of Legislators and the Executive. The High Court echoed the same views in a landmark ruling on the role of legislators. Retired Judge, Justice Aaron Ringera categorically ruled that Parliament is not an organ of review and cannot participate in the replacement of a Constitution under which they swore to protect and defend.

Silence of the law on the role makers of the Constitution would play in the post ratification of the document leaves a lot to be desired. No law bans CoE like their Constitution of Kenya Review Commissioners (CKRC) predecessors from contesting elections under the document in preparation Kenyans have not forgotten that former delegates at the National Constitutional Conference and Commissioners including Secretary to the Commission contested the 2007 elections which could have been held under a new Constitution they had prepared.  

The logical  thing  that  should  have been  done  on the  way to a search  for  serious people to deliver a new Constitution could have been a ban of  lawmakers and any other participant from standing for elections for  a  period of time under the  Constitution they have made.

The  road  to  a referendum  sometime this year is  a bit  rough  for  the  jokers of the yesteryears who frustrated  the making of the  supreme law whose delivery  promises to be controversial and elusive as ever.

(The writer is a former cabinet minister and top national official of two major political parties, KANU and LDP. Email:  [email protected])


Latest Articles

Most Viewed