Kenya: PSC on Constitution Review Overstepping its Mandate

Published on 25th January 2010

While continued media reports have hailed the progress being made at the Great Rift Valley Lodge (Naivasha) over the past week, there are various issues of concern that Kenyans should be aware of.

The Parliamentary Select Committee on the Constitution (PSC) had a defined mandate. They were mandated to look into four key areas of the draft constitution received from the Committee of Experts (CoE), namely: devolution of power, the executive, representation and transition. However, according to media reports, the PSC appear to be reviewing the CoE draft chapter by chapter.

 

We have heard of resolutions on the preamble, the bill of rights, the definition of when life begins and the like.  If this is indeed the case, then the PSC have grossly overstepped their mandate and gone on a frolic of their own, deciding for themselves the contentious areas and adopting resolutions concerning these. While we appreciate the achievement of the PSC in reaching consensus on various matters, whatever seems to be contentious to the PSC does not make it so to the wider Kenyan public.

The  few parliamentarians doing this ought to be reminded that constitution making is not a function of parliament but an exercise of the wider Kenyan public.

The PSC must respect the law that defined their mandate. It is the law that gave them their review powers on the specified contentious areas and to overstep their mandate is to engage in an illegality. One cannot purport to create a legal document using an illegal process.

At the moment, Kenyans are relying on  information based on rumours from the press. It is time that the chairperson of the PSC briefed the public on the progress that they are making to avoid Kenyans engaging in guesswork and rumours.

Kenyans should not get lost in misdirected applause for purported progress made by the PSC; but be watchful  against losing out on fundamental issues as the PSC runs back and forth on issues outside their mandate.Until the referendum is held and completed, nothing in the ongoing process is cast in stone. Kenyans should thus not shy away from interrupting the process to ensure that the resultant document is representative of Kenyans’ ambitions, aspirations and wishes.

If we do not demand that the PSC sticks to its mandate, we will end up with a parliament-driven constitution. The PSC and parliament are themselves creatures of the law and they cannot hijack the process of making of that very law according to their whims and vested interests.

 

Despite the deal making amongst the political class, the primary truth is that the constitution is a Kenyan public interest and we demand that it remains a process of the Kenyan people. We have already spent billions of taxpayers’ money, time and even lost lives in previous attempts to arrive at a new constitution for Kenya. There is no doubt that Kenyans want a new and democratic constitution.

We, as a people’s platform, are committed to and support the process of constitution making. That is why we emphasize categorically that we must get it right this time. However, it must not be done by glossing over fundamental issues such that we end up with a document that does not reflect Kenyans’ ambitions, aspirations and wishes.

If these concerns are not heeded by the PSC, they can be guaranteed that Kenyans shall exercise their inherent sovereignty and reject whatever document comes from this process in total.

By George Nyongesa

On behalf of Bunge la Mwananchi

www.bungelamwananchi.org


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