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Wednesday, November 18, 2009

Draft Constitution: Good-Looking Juice Laced with Poison

By Guest Writer

Dear Committee of Experts (CoE),

First, let me commend the CoE for a job well done in coming up with a harmonized draft that is middle ground for advocates of presidential and parliamentary system of Government. However, in my view, the draft looks like a good-looking orange juice but laced with a dangerous poison.

I have gone through all sections of the draft and I like all, especially one on devolution. However, I have a borne of contention with the aspect of executive authority. Kenyans need to take a critical look at the executive authority aspect since this is the nerve centre of any nation. It is make or break of any country. My argument is this:

1. Kenyans wanted powers of president reduced but not transferred to another centre of power. What will stop the new centre of power from abusing power like happened under the imperial presidency? Executive authority should be shared with other institutions like Parliament and Judiciary and not shared amongst politicians.

2. Kenyans wanted to vote for the person to be the CEO of their country regardless of whether the person is a premier or a president.

3. Creating two centres of power – executive premiership and president – will create permanent tensions in Kenya due to power struggle between the competing forces. The lessons of Kibaki and Raila putting Kenya on permanent tension since the signing of the 2008 National Accord should have informed your decision. The same situation happens in Zimbabwe. The good thing is that the National Accord comes to an end with the expiry of Kibaki/Raila term. But the draft you came up with will become law, if Kenyans vote YES for it, and it will guide Kenyan generations for many years. Who will invest or visit as a tourist a country that is permanently gripped by tension arising from power struggles? Many tour operators and other business have suffered greatly after the 2007 disputed presidential polls. The National Accord was signed to bring peace and it achieved that. But the country has remained tensed due to bickering by politicians and the tourism and hotel industry has suffered heavily. The country’s economy is in limbo.

4. I do not know of any country in the world which has a hybrid system of Government like the one you propose. Why do you want Kenya to experiment a suicidal system of Government that is likely to lead Kenya to war and extinction?

5. I favour one centre of power, but weakened – either presidential or premiership. The current Constitution is abused because the presidency overrides everybody else and other institutions. The president makes any appointment and he imposes his personal views on the rest of Kenya. In the new constitutional order, I propose we can have a president or premier elected by Kenyans but have strong institutions for checks and balances like Parliament and the Judiciary. Like in US, the country’s CEO should not make unilateral appointments or major decisions. All appointments must be subject to Parliament approval and you must seal loopholes like the ones Kibaki exploited in re-appointing Ringera for an illegal second term. This will ensure the CEO doesn’t fill public offices with his cronies, tribesmen and women, friends and relatives. This has been the borne of contention with an imperial presidency. Another is sharing of Kenya’s resources and you have addressed it well in the devolution chapter.

6. A country’s CEO should derive his mandate from Kenyans and not MPs. Going by the history of our Parliament, a PM elected by MPs will be a hostage of the same people who elected him and not be accountable to Kenyans. If Kenyans have always opposed the election of mayors by councillors why do we want to do the same for a PM who will run Kenya and make major decisions affecting our lives? Mayoral candidates have for years been herding councillors to secret locations and held them like hostages so that they vote for the person who held them hostage. There has been a clamour for mayors to be elected directly by Kenyans. Why do we want to reverse the way we elect our country’s CEO? Do we want candidates to turn out be civic authorities? If mayors elected by a college of councillors have failed miserably, why do you want Kenyans to be ruled by proxy?

7. You propose stringent voting process for a president but a PM will be elected by MPs. Yet the PM will appoint Cabinet, chair Cabinet meetings and run the Government. Why should a president go through a rigorous campaign and voting process and end up performing duties that look purely ceremonial? The Government – composed of the Cabinet – is what makes major decisions on behalf of the electorate. Why should Kenyans go to vote for somebody whose work will be to the commander in chief of armed forces, receive foreign guests and other ceremonial duties? Yet the person who makes decisions that affect their lives will be elected by a caucus of MPs. Where is the logic and wisdom in this school of thought? What democracy is this?

8. Kenyans need one centre of power – whether premier or president – who will be accountable to them. As long as that CEO derives the mandate to rule from Kenyans, will never make appointments or major decisions unless ratified by other arms of Government, Kenya will remain a stable nation. Such a CEO will be the country’s symbol of unity and stability. Two centres of power is recipe for chaos and anarchy due endless power struggles.

9. A constitution is for posterity and not for short time fix to solutions. We can’t afford to risk with a trial and error constitution or gamble with our lives. The power games played out by Kibaki and Raila are a lesson to all. Who wants such kind of power games and tensions through out his/her lifetime? In Israel, the Government led by the PM collapses now and them. For them, they have resources to conduct new elections and attract investors. For our struggling economy and deeply tribal nation, an unstable Government will erode all the gains we have made since independence and make Kenya isolated by investors, donors and tourists. There is a saying that when two bulls fight, it’s the grass that suffers. When politicians engage in power struggles, ordinary folks will suffer. Let’s not rush to adopt what looks like a suicidal form of Government in our hurry to address an imperial presidency abused by Kenyatta, Moi and Kibaki. There is no doubt the constitution making process is heavily influenced by Kibaki and Raila. Kenya is larger than Kibaki and Raila and it’ll be suicidal to form our thinking based on the two men. I would rather remain with the current Constitution than vote for one that will drive us into the grave a few years later.

10. The draft by CoE looks like it is tailored for certain politicians and political parties in mind. Kibaki and Raila and ODM and PNU should not form the basis of a new Constitution. Anyone who wants to rule Kenya should get our mandate. I care less who or what tribe the country’s CEO comes from - as long as he/she has a mandate of a majority of Kenyans to rule us and rules by the Constitution. CoE can make that happen by refining the draft to reflect that. In a true democracy, the losers concede defeat and agree to be ruled by the person who has won the majority vote. To ensure the winner doesn’t take all, you can borrow Rwanda example where the Opposition nominates people to Cabinet. The winner can take ¾ while the Opposition can take ¼. Why did Kenyans fight for multipartism? The remaining Opposition can keep the Government on its toes in Parliament.

11. I humbly appeal to CoE to cast their eyes 100 years ahead. Let’s make a Constitution for posterity and for future generations and not one to suit the power greed of certain politicians, tribes or selfish groups.

12. Lastly, I favour one Parliament since two chamber parliaments will be creating more jobs for MPs at tax payers’ expense. A constitution should not reward greedy politicians. A constitution should help govern a country and at the same time give key priority to those being ruled.


Anonymous said...

Mr Guest Writer (I don't understand why you choose to be anonymous-might you be Taabu?)you are such a pessimist. For you, the cup is ever half empty. For you, the constitution is just about president and PM, PNU and ODM, Raila and Kibaki. For your information, there are 316 chapters of the draft constitution. You have only talked about ONE and you make it look like it is all there is. Pole.
It saddening for you to compare the draft with the current forced arrangement of Raila and Kibaki, Tsivangirae and Mugabe. If you saw the cup as half full, you would have talked of the Queen and Prime Minister of England.or even the president and PM in Tanzania. Don't you see that once the new law takes effect, we Kenyans shall elect the president directly and the PM indirectly? Don't you see that both the president and PM will have checks and balances against one another? Raila and Kibaki have had a frosty relation because it was a marriage of convenience. With the new law, someone will willingly stand for president knowing well what his/her role is and what his/her limits are. The same for the PM. Since both of them will be in it for the first time, they will have to behave themselves as they play their cards for the next re-election. Meanwhile Kenyans and parliament will keep them on their toes. By the way, that time there will be an official opposition, and it will put the PM on his/her toes. The PM might also face opposition within his/her own party or group of parties. 5 years will fly by fast as they try to set precedents and fulfill the high expectations of the Kenyans. Meanwhile the other new acts, e.g double citizenship, senate and lower house, jimbos and councils will also be fighting for their rightful share of space.
Really, I don't understand what you are pessimistic about.


Anonymous said...

Lebo, shida ni nini? "GUEST WRITER" is discussing a section of that which is contained in the draft. Do not be so rush, this writer certainly did not author the draft. If you don't like what he/she is saying, then it obviously means you don't like that section of the draft...which puts you in the same page as the guest writer!!!
Eish, some people!!!!

Taabu said...

Creating two centres of power is a sure recipe for eternal chaos and extrapolation of the present inertia plus tension. The CoE kept themselves hostage to the present political dispensation and forgot about the singular tenet of posterity. The good thing is that they did their job and we now have something to tear a part.

Change is invitable but best achieved in doses. Overhaul is nothing but coup in disguise. This is not to downplay the sigficance of a new constitution. Far from it.

Kenyans demand new order in the hope that imperialism will NOT be accepted but instead severely punished. But that hope may be anchored on a hollow premise given the same old face at the front of the new drive for change.

The old contitution was made a guide for statemen to take us forward. But alas, they failed to comprehend the magnitude of their responsibility and chose to mutilate it as they chopped Kenya into indivisible portions.

Opting for parliamentary system of governance may just be what the doctor ordered. With that voters will go for parties whose leader becomes PM hence known by voters apriori. That greatly transform the tribe-based parties for it will be policies that matter. What is more, briefcase parties will die a natural death. The task of electing PM must not be left to wheeller-dealer MPs.

So what to do? Well, a new constitution provides the best break from the ruinous past. But we must REWORK it for posterity and NOT preface it with PNU/ODM pettiness. We owe it to Kenya and future generation.

PS: @Lebo no need to go personal. You have the right pal to disagree and no name calling. Just stick to the message and spare the messenger brickbats. Show and tell us your take, will you?

FYI half empty and half full are EQUIVALENT statements. Consider this half full may be evangelism, while half empty is reality. Take your pick and keep it civil, ama?

Anonymous said...

"It saddening for you to compare the draft with the current forced arrangement of Raila and Kibaki,"

Mr. Lebo, this is the exact problem with this harmonized draft. They, the experts did just that, they are creating a draft constitution, at least the chapter on the executive, with these individuals in mind. By the way, the writer categorically stated why he chose to talk about the executive & not the other chapters. That does not equal pessimism.

"Since both of them will be in it for the first time, they will have to behave themselves as they play their cards for the next re-election. Meanwhile Kenyans and parliament will keep them on their toes. By the way, that time there will be an official opposition, and it will put the PM on his/her toes."

1. Which Kenya are we referring to? Kenyan politicians, do not behave themselves FULL STOP! It will not change with a new constitution.
2. There is already an official opposition & a certain official opp leader abandoned ship in 2007 for very selfish reasons. My point is, you seem to be putting your hopes on the politicians behaving themselves & respecting the constitution. We already have a constitution, yet it is thoroughly abused! What we need are checks & balances to ensure the law is upheld & not power sharing. Kenyans can not depend on political Good will.

Anonymous said...

Let the truth be told MOST woes upon Kenyans is due to imperial presidency. And their hope lies in a new constitution that woul tame this EVIL office as it stand now.

If in doubt just ask one dead Kaggia who would be smiling six feet under were he to read this..

.......Tribalism, protecting class interests, perpetuating impunity, and frustrating justice blossom because presidential leadership is captive to vested interests. The presidency has been a captive institution. But rather than confront the presidential challenges, the excuse has been to spare the president by blaming patrons..

Woe unto us if we let this opportunity slip. The devils will descend upon us with vengeance.

Anonymous said...

With all due respect, there is a difference between a critique and a critic. Guest writer is definitely the latter. Look, if things are so gloomy as he has put it, then there was no reason to even think or waste time cobbling up a new constitution.
If history is bound to repeat itself as Anonymous @ 12:38 asserts, then why are we struggling at all? We have to be positive, have hope. You must agree that the political field and players are changing fast. Kenyans are also more assertive, demanding, alert and informed than ever before. All the drafts that were written before ensured that there is a president and a PM. Kenyans all the time and everywhere have demanded that the presidency be trimmed and that there be checks and balances. When Kenyans vote for this constitution, they will also vote in MPs who will make it work. By the way, MPs will in the new constitution be recalled if they don't deliver, the PM and his/her cabinet can be sacked by the president and the president can be impeached. Aren't these good enough checks and balances to keep them sober and contained? Let us start somewhere and then we shall refine and define things as we move along.

That's my humble take.


Anonymous said...

a glass half full or half empty is far much better than a empty rusty mug that was last cleaned in 1965.

i guess the "draft constitution" is one of the many stumbling blocks that kenyans will have to overcome in their search for a better life for themselves as well as a stable future for the country.

let the long journey begin as kenyans embark on a very long march toward 2030.

let's set the stage for the next generations regardless of whether some of us will live to participate in politics by 2030 or not.

there are some political goons who failed to set the stage way back in 1965 and 1970.

Anonymous said...

It was very interesting for me to read the post. Thanx for it. I like such topics and everything that is connected to this matter. I would like to read a bit more soon.

Anonymous said...

I think we will not have a perfect document right off the bat but I think this one is managable.

Anonymous said...

I share the same sentiments with the guest writer. If we are not careful with the Executive Power Section of the Draft we will be condemned to eternal damnation of our own making. Of the two executive power holders, one must be the ultimate CEO, and that CEO must be directly elected by the people. That CEO must derive his executive power directly from the PEOPLE without intermediaries (MPs).

Anonymous said...

Guest writer is so right. I hope he/she has forawrded his/her views to COE. I have. Non lawyers can see these things so clearly and I wonder why a group of lawyers cannot. Is it some infatuation with legal theries? The draft says the prime minister will present a list of ministers to the president for appointment. Surely COE cant see a huge danger with this? What if the president does not like the list? If we are to talk frankly we know the kenyan population is unsophisticated. The mindless supporters of the two officals will ensure that the two fight for supremacy. If more posts are required, then the current post of PM is good enough. They have copied the French system but their proposed president is weaker than the president of France. In France the presient is the boss. He attends G8 and such like. But in our proposed system the PM will be attending EAC and AU meetings, because these meetings are basically for heads of governments. What will the president promise when campagning to get a majority of the votes cast? To be a good CIC? This is such a big joke. Like Moi said some time ago, people need to know who to blame if things go wrong. It is as simple as that.

Anonymous said...

The part on term of office of the President reads:
"Term of office of State President
167. (1) The State President shall hold offi ce for a term not exceeding fi ve years beginning with the
date of assumption of offi ce.
(2) For the purposes of clause (1), the period that the State President serves as State President
after an election of a new State President and before the swearing in of the new State
President is not part of the term of the outgoing State President.
(3) A person shall not hold offi ce as State President for more than two terms.
(4) For the purposes of clause (3), a person who has continuously served as State President for
at least two and half years shall be deemed to have served a full term."

If the draft constitution is adopted next year, since the older constitution will have been ousted, and constitutionally speaking, Kibaki's power and legitimacy will arise from this constitution, nothing can stop him from him, constitutionally and legally, from declaring that he is serving his first term and run for another one. Remember all other laws, including electrol or any judgement or ruling of the court, obtain their validity and legitimacy from the constitution, and the constitution, including this draft, declares itself the supreme law and thus renders any conflicting law, action, judgment etc null and void. It's provisions are the ultimate point of reference, not previous constitutions and laws.
I think this draft should have one a provision that institutionalizes national elections in December 2012, and that the current holder of the office of State President shall not contest the Presidency at the said time.
Futher, it should provide for a way of change from the current Parliament system to Senate and regional governments. As it stands, when it is adopted, parliament will stand dissolved, since there will only be a senate, structurally different, and even if it continues running, one can rush to the courts to have it declared unconstitutional. I bet there will be many confusions, and given our politicians greed and general activism, malice and bad faith among Kenyan populace, there will in no doubt much problem of implementation. The constitution should have a full section of transition of institutions e.g. within two years after coming into force, to forestall anarchy and misuse by politicians, and general confusion which is detrimental to economic prosperity and national cohesion

Anonymous said...

Anon1:46 a.m. again,

Rememember Moi argument in 1992 that he was running a new term although he had already served approximately 14 years as President. Under the new constitutional law, he was fresh, and Matibas application that he be barred was thrown out of the courts. Unless the constitution states that it has a retrospective effect on some office holders, they are deemed to be new creations under that constitution, running afresh.

Anonymous said...

I want to thank all who have read the draft constitution and are reasoning out well.Thank you Very much guest writer for those views. I know in Kenya right now many people have many views let us be soberand discuss this issues soberly.
The draft is a good work well done, but we should caution ourselves about the chapter on executive powers. Two centres of power are dangerous for all let us be informed from the present.
another issue too many people going to the national assembly trhough nomination many of them being women. Where are the youths who is representing them, while each county represents one woman youths are left out. This should be share out between women and youths. Many women who are nominated to this political position they are not really representing other women which method will be used to pick them.

Anonymous said...

you are in trouble now because everyone knows the bottom line is we cannot have 2 centres of power-i am guessing but i think most Kenyans don't want a President and a Prime minister but would certainly prefer one or the other

COE, the problem is not with Kenyans reading the draft-the problem is after we read and make our views known the POLITICIANS will pretend and act like they never heard what we said

That right there is the REAL problem-as Taabu said same old faces can NEVER learn new tricks and drive the new charge for change

Meanwhile all is well in Kenya today. 2012 is coming fast and furious and the country continues to gully creep around implementation reforms agenda

Anonymous said...

1:46...THANK YOU, That was very insightful.
Guest writer, THANK YOU. I am in total agreement. As much as I hate, absolutely, dreadfully hate to say this, I'd rather have the current constitution (on the executive) than what the harmonized draft is offering...It is potentially, very dangerous!

Anonymous said...

Where did this expression of power 'two centres of power' in relation to the President and PM come from? Does it mean it only refers to them? Ofcourse not? There will be several centres of power - and this is good for us. First parliament should be considered a power - we all saw what they did when Kibaki wanted Ringera to remain in office illegally - then there is the judiciary - another power - which can also check President and PM - so stop talking about President and PM. I wish there were several centres of power - it is this one centre of power that has caused chaos. The draft as I see is the best. I vote YES.

Anonymous said...

COE said kenyans told them they (kenyans) want to continue electing the president. COE appears to have misunderstood what kenyans meant. Kenyans meant they want to elect the country's CEO.

Yes there are many centres of power but the CEO should only be one person. Sharing of CEOship between a president and PM is nonesense.

Look at Ukraine after the orange revolution. They came up with a weaker president and a strong parliament and prime minister. President Yuschenko and PM Tymoshenko spent all their time trying to prevent each other from achieving anything. And Ukraine is in Europe , with a long history. If it is not working in Ukraine, it is not going to work in kenya. The kenyan population is too backward for these sorts of experiments.

Anonymous said...

It is very interesting for me to read that article. Thanks for it. I like such themes and everything that is connected to this matter. I would like to read a bit more soon.

Anonymous said...

A shared center of power entails governance by a method of push and pull, with Kenyan's at the Center. Accepting the constitution with dual power will be equivalence to accepting to drink from a poisoned chalice.
Authority and Responsibility will need to tilt more towards one of two position PM or President, the position which receives mandate through the election process.

Anonymous said...


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