Kenyans Need a People Driven Constitution

Published on 26th January 2009

Kenyans need to unite to ensure that they have a new constitution in 2009 and precisely get the Bomas Draft constitution adopted. The draft is/was a product of an elaborate, consultative process across Kenya's political and ethnic divide before NARC wrestled power from KANU in 2002.

Symbol used to reject 

new Constitution in 2005

The draft constitution offers a way out  of economic mismanagement that is politically driven besides having a unique code of conduct that underpins accountability on the part of political leadership.  Attention is called to chapter 9 sections 94-100 of the draft constitution in question in so far as issues of political leadership and integrity are concerned.

The constitutional framework will clearly check the impunity seen in scandals that have far reaching implications on Kenya's economy. With improved and accountable leadership, Kenya will change fundamentally. Further, the draft constitution has provisions that cabinet ministers are experts who are non-politicians/parliamentarians--this offers advantage in having matters concerning economy handled by experts with relevant knowledge and professional accountability and determination devoid of political patronage and expediency.

The perennial famines, techno-economic and infrastructural decay and decadent wishes for a new democratic constitution tell a much bigger story. In an effort to ensure accountability in government, the draft gives the legislature power to vet key public appointments guaranteeing checks and balances and guarding against "personal rule".

Kenya's legislature must be reformed. Proposal for the creation of regional governments as enshrined in the Bomas draft constitution is long overdue. The current national legislature that is controlled largely by the executive presidency is a puerile distortion between executive and legislative functions of government. That the president controls an elected legislature is dictatorship.

There is growing need to have both national as well as regional (in the current administrative context-provincial) parliaments. A national parliament will enact laws for the nation while the regional legislature /government guided by national laws will ensure that the laws that ensure good governance are engendered and embedded in the broader societal context for political and economic transformation of the individual regions and the nation in whole.

To ensure some measure of flexibility, regional governments should be allowed to be innovative and align their operations to emerging regional needs but never loose sight of the wider national constitutional framework. Regional governments as envisaged in the draft constitution handle issues such as  land, environment, education, physical infrastructure, research, and agriculture among others.

In a nutshell, regional governments will have the determination to achieve what the current government arrangement has over the years, not been keen on broadening or doing on a scale that satisfies all people of the heterogeneous Kenyan society----what is being proposed here is essentially constitutional devolution of government. Attention is again called to chapter 14 sections-206-225 of the Bomas Draft constitution.

Checking impunity and personal grandeur

That MP's are elected for a full five year term irrespective of their performance in the delivery of much needed development and integrity in the dispensation of public duties and responsibilities is an arrangement that is open to abuse of office. The Bomas Draft constitution's  provision that the electorate to re-call non-performing MPs would instill discipline   and sense of duty among MP's as peoples' representatives. Leaving them free is sure way of condoning sleaze in governance.

The President is head of state while the Prime Minister  is head of government. One wonders why in Kenya, mischievous politicians and their docile tribes are myopic to this obvious sense. Kenya's current supreme law makes the president an autocrat not because he personally chooses, but because he found it "in-situ" and must thus enjoy it for his own gain at the expense of national good.

The Bomas Draft constitution draws a clear distinction; in Kenya coalitions of tribes will form to usurp power. To appease tribes and guarantee stability, the positions of president and premier must always be there and be duly empowered. Kenyan presidency cannot effectively and democratically run both state and government well so it must stop personal rule that has sunk Kenya in constitutional dictatorship.

It is also clear that not one single tribe can rule for eternity so let us create working institutions for our own posterity since Kenya is a heterogeneous society. Reference is drawn to chapter 12 of Bomas Draft. It is crucial to note that the positions are not created for tribes but as part of government structure for political stability and good democratic governance. 

Bill of fundamental rights and judiciary

Chapters 6 and 13 provides how Kenyans will live a free people but mindful of the law and consequences for omissions and commissions. Clear distinction is shown on how the executive will never interfere with the judiciary and the basic human rights of the people. This will end the misrule that has existed since independence.

The Republic

Chapters one, two and three help to re-state the national sovereignty of the republic and the values on which our nationhood is erected: This should clear political mischief that was advanced that the draft sought to divide Kenya along tribal or ethnic lines.

Read in whole, the draft is the best. It is a product of our own views. The Constitutional Review Commission of Kenya went round the country and sought our views. We must note that Kenyans vehemently rejected the Wako draft because of obvious reasons: The views were not ours.

As the country gears up to the gigantic challenge of constitution making starting February 2 2009, let us give experts a chance to examine the drafts and deliver supreme law that will unite Kenya and be a springboard for socio-economic and political posterity.

Henry O. Najwere
Nairobi


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