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Thursday, June 03, 2010

The really bad news about the new constitution

Something is NOT right. Apart from the spirited No campaign, there is something wrong. There is something that is not quite right in all this new constitution thing.

I saw George “Goldenberg” Saitoti stand up yesterday and talk passionately about how the new constitution is good for Kenya and I wondered. Mwai “Anglo leasing” Kibaki to quote a local TV station “has now removed his gloves” in battling the No camp over the new constitution.

For somebody who knows the history of all these politicians fairly well and having read a substantial part of the draft constitution, there is something that just doesn’t add up. Unless human nature has suddenly changed. Or maybe the self-preservation instinct in humans has disappeared, let alone in the super-greedy politicians of Kenya.

If the draft constitution is passed, the truth is that justice will come to Kenya and many political careers will come to an abrupt end forever. The truth is that wananchi will change into wenye nchi and within a few years Kenya as you know it today will be unrecognizable.

So would a man welcome an executioner to their home and fete them knowing very well that their necks would be on the chopping block within the hour? Quite unlikely.

So what is it that the political class knows that the rest of us don’t know?

Let me try to answer that question.

Firstly it is important to note that the chain of events starting with the post-election troubles of January 2008 have removed matters from their hands. The truth is that there has been considerable international pressure. It has been clear to the world that going to the next elections without a new constitution was just plain suicide for Kenya. And many of those nations have vast vested interests in the country. The travel bans have worked miracles and put the right pressure in the right places. Have you noticed how much Wako has changed since the Visa ban? This is certainly not the same Amos “editorial changes to the constitution” Wako of 2005.

And so the political class has had little option but to support a new constitution, at least the vast majority of them. But after consultations with their lawyers and legal experts they have come up with a strategy. It is based on the fact that it will take a minimum of five to six years to fully implement the new constitution if passed. And then parliament can always employ a few delaying tactics here and there which would drag certain changes for many more years. In any event many of the most powerful politicians in Kenya do not envisage themselves still in politics in the next 10 years. And bear in mind that a lot of crucial decisions have still been left to parliament. For instance the maximum number of acres an individual can own can be kept high enough. In any case there are still countless loopholes because a large land owner can distribute his land holdings amongst his wives and sons (and believe me some of these families are huge). You see the most important thing about any constitution is the spirit of that constitution and great damage can be done by people who do not have the interests of the country at heart. There is no constitution in the world without loopholes that any smart lawyer can take full advantage of.

And so the bad news is that saying Yes on August 4th will only be the first step and the beginning of a massive battle to free Kenyans. There is still a lot to be done if we are to see the full positive effects of the new constitution. For starters we will have to vote very wisely in the next general elections and ensure that we get fresh new faces who are ready to do serious battle with old money in Kenya. People who cannot be swayed by money and people prepared to give their lives for the motherland. Tall order indeed, do such Kenyans exist?

But the good news is that if the new constitution is passed it will be the beginning of our emancipation. Already we know for sure that the train has left the station and for better or for worse it is headed in the right direction. We’ll just have to take care of the obstacles as they come. Brace yourselves for a rough ride folks but we shall surely overcome.

What people don’t like about Dark secrets of the Kenyan presidency.

21 comments:

Anonymous said...

Mwarangethe has been warning you Chris all along. You do not seem to listen.

Read what he says, he has a point.

Mwarang'ethe said...

Chris wrote

For instance the maximum number of acres an individual can own can be kept high enough. In any case there are still countless loopholes because a large land owner can distribute his land holdings amongst his wives and sons (and believe me some of these families are huge).

xxx

Chris, you are now talking.

We have been asking the same questions here and we have been dismissed as "know it all."

For instance, what if Moi decides to have his land under corporations which are persons in legal terms?

What if the biggest landowners pour money to ensure the majority of the mps in the next parliament will be pro land owners?

You wait and Kenyans will see by 2013 - 15.

Phil said...

Chris and Mwarang'ethe,

The problem with you guys is that you are reading some of the constitutional provisions in isolation.

Most of these provisions are inter-related with others which change meanings in some cases. And again, the constitution is only the supreme law. Parliament will pass additional detailed laws that will legislate land management.

Sample these:

5 - LAND AND ENVIRONMENT
5:68 - Legislation on land
....parliament shall enact legislation......

and

5:60 - Principles of land policy
(1) Land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable, and in accordance with the following principles-........
(d) transparent and cost effective administration of land..........;

I believe it is wrong to call the land chapter has loopholes and yet the same constitution says parliament will enact legislation touching on a wide variety of issues. Together with the proposed national land commission, acts of Parliament will certainly take care of those loopholes. The land chapter is not complete as you see it on the constitution.

Mwarang'ethe said...

Phil said...
Chris and Mwarang'ethe,

The problem with you guys is that you are reading some of the constitutional provisions in isolation.

Most of these provisions are inter-related with others which change meanings in some cases. And again, the constitution is only the supreme law.

xxx

Yes, the provisions of a constitution are inter related. However, when you link all the provisions of this constitution, it is a total mess.

Now, you are about to create a huge bureacracy to "manage" land. We have seen this movie in Rome, Zimbambwe and SA. How did it/has it gone? Or, real experience does not count?

Land does not need state managers as such. Land should be managed via free markets. Let whoever feels has the entrepreneurial ability take Koinange street and pay us the rent, take it. Such a system does not need huge govt. bureacracy to manage. Why this obsession with huge govt.?

Today we read this: "Fat cats used IDP cash to buy posh city homes."

@ http://www.nation.co.ke/News/Fat%20cats%20used%20IDP%20cash%20to%20buy%20posh%20city%20homes/-/1056/931156/-/75r2ysz/-/index.html

Are you trying to tell us that, these people who will "manage" our land are better than these guys who are stealing from refugees?

Keep on dreaming man. The solution is not MORE BIG GOVT. Bigger govt. will mean one thing for sure. MORE CORRUPTION.

Anonymous said...

Mwarengethe is definitely right. We will just get more state officials to steal from us. People having to live in refugee camps so state officials can buy exensive homes in nairobi! That is kenya for you. And one has to agree with jesus on this one: none is without sin. So dont go casting stones because we know most kenyans will steal given a chance.

If the principals are determined to pass this thing, it will probably pass. But it is good to see people like mwarengethe bringing us back to earth from the clouds where chris and phil are due to this new constituttion drink.

DM-Nairobi said...

"People who cannot be swayed by money and people prepared to give their lives for the motherland. Tall order indeed, do such Kenyans exist?"

NO THEY DON"T. The remaining decent Kenyans are cowards.

Philip said...

First of all we need to ask ourselves the following questions: Is the new constitution better than the old one?

I know that we are closing in on the new constitution not because powers has been transferred to Mwananchi from the president but because power has been transferred from the President to Parliament, otherwise the constitution couldn’t have gone beyond the PSC. This to me is a step forward, and more when you regard the bill of rights given to Wananchis, though not very sufficient.

We should look at the intention behind the land clause. I had explained this in one of my earlier post concerning the explanation that Martha Karua gave, and as Wananchis we will need to support the leaders who will go by this intention. It's that intention which is sending shivers to some land owners.

There are many laws which have been put in place with a good intention, though people have misused them or have been bribed so that they ignored them (local authority by-laws and traffic rules tells a good example). Such misuse/ignorance doesn't mean that the law is bad and shouldn't have been there.

The bill of rights has given Wananchi more rights so that they will need to use this in order to ensure the spirit of the law is followed. If detention without trial was still there maybe Kenya could have been worse than it is today.

Concerning corruption - whoever thinks corruption has increased is wrong. The reason corruption seems to have increased is because the media is reporting most of them, some which are leaked by KACC and CID. If the period between 1990 and 2000 was brought forward then you could have heard of major scandals like NSSF Building, Nyayo Estate, NHIF Building, "NSSF plaza" (where Nakumatt Lifestyle currently is - it was suppose to be the tallest building in the city), and many others which were never reported and have been forgotten. In all the above the government lost over 3 billion, which is more now if you factor the value of money). Goldenberg took more money than all the current scandals combined. I've talked to several people who work in Lands Ministry and all have told me that during Moi's time they used to make more money in corruption than currently, despite the economy doing poorly those days. We should also measure corruption based on money transacted vis a vis what is stolen, for if we look at only the money stolen then we should not be surprised to find that there is more money being stolen in America than in Kenya, which using that way will mean there is more corruption in America than in Kenya.

Philip said...

There are times where progressive change becomes more viable than radical changes.

The constitution is more progressive than radical. That's why radical issues were left hanging, particularly on the issue of land since it has to be approached with care. So Zimbabwe shouldn't be mentioned since Kenya will not go that way as this will create unnecessary war.

Recall of Mps was also left hanging because if it were to be put in place then we could not have been thinking of the constitution. Therefore let's get the pie we have and ask for more later instead of wanting everything which will cause fights and eventually we'll end up having nothing and at a worst situation.

Also, a pie in hand is better than nothing.

Anonymous said...

Rao unlock cash from lazy Uhuru!

Kenya releases Sh553m for voter education

By LUCAS BARASA
Posted Thursday, June 3 2010 at 16:04
The voter education on the referendum has received a shot in the arm after the government announced the release of Sh553 million to the Committee of Experts.

The money will cater for the completion of the civic education programme ending weeks of bickering over the cash.

Prime Minister Raila Odinga met Finance minister Uhuru Kenyatta, Justice, National Cohesion and Constitutional Affairs minister Mutula Kilonzo and Committee of Experts executive director Ekuru Aukot Thursday where a deal was struck to release the money.

“Given the significance of sticking to the timeline of this exercise and the significance attached to the review process the government has released Sh553 million to finance the activities of the Committee of Experts from now to the end of the review process,” Mr Odinga said at his Treasury Building offices, Nairobi.

Bring parties together

He said, in the company of Mr Kenyatta, Mr Kilonzo and Mr Aukot, that the misunderstanding could have been because he was out of the country and that there was nobody to bring the parties together.

“This puts to an end the row over the money.”

The PM said the government is fully committed to ensure civic education was done satisfactorily.

The civic education, he added, would enable Kenyans make an informed decision during the August 4 referendum.

Mr Odinga said although the money was not included in the current budget, the government had been relocating money from other ministries and departments to the review exercise.

He, however, said all the money for the constitution-making process will be included in the Budget to be read on June 10.

“All the review activities will be catered for,” Mr Odinga said.

The PM said the CoE was satisfied with the Sh553 million allocation adding that the row over the money had caused unnecessary anxiety among Kenyans.

Internal matter

Asked about complaints by CoE over the Finance Ministry's move to pay the Government Printer to publish copies of the proposed constitution at more than Sh100 per copy yet the committee was doing it at Sh27 per copy elsewhere, Mr Odinga said “this is an internal matter".

He said there was no problem with his office giving Sh90 million for civic education and Ministry of Justice Sh10 million since “all the money comes from Treasury".

Questions had also been raised why Treasury was channelling the funds for printing copies of the constitution through the Internal Security Ministry and not that of Justice.

Mr Odinga said delays to release the funds for civic education could not affect the exercise as it has been going on smoothly and that Kenyans were also enlightened on the document having been involved since the Bomas National Constitutional Conference.

“Kenyans know a lot about the constitution. We are not starting from scratch. The Yash Pal Ghai team did a lot of civic education. The proposed constitution is not entirely different from Bomas draft. The current civic education is mainly focusing on a few new sections,” the PM said.

He said the civic education could continue past the 30 days that had been allocated under the Constitution of Kenya Review Act.

“Unaweza kutafuna na kusakata rhumba,” he said in Kiswahili. (You can chew and dance at the same time)

Mwarang'ethe said...

Philip said...

First of all we need to ask ourselves the following questions: Is the new constitution better than the old one?

I know that we are closing in on the new constitution not because powers has been transferred to Mwananchi from the president but because power has been transferred from the President to Parliament,

xxx

Translated, you are saying this. Transfer of power from Moi, Kibaki and the future president to Ruto, Jirongo and Kamukunji MP Mbugua Simo, is what is making you vote for this Katiba.

If you want to know how they will do with those powers, look into the past and how they have used the little powers they had. It shall be the same.

xxxx

The bill of rights has given Wananchi more rights so that they will need to use this in order to ensure the spirit of the law is followed.
xxx

One must wonder. It is over 200 years since Jefferson wrote these eternal words:

"That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety."

Simply:

(a) Man's right are INHERENT. They cannot be given by any one or a mere piece of paper/document authored by man.

(b) Men enter into society, or compose a govt. to protect these rights.

(c)All man's right flow from his right to property which they have had even without a government.

As we all know, the Jeffersonian idea of "with the means of acquiring and possessing property" which would have freed mankind, was not allowed to enter the final American constitution. The fruits of this are obvious to keen observers of human society.

You may have a very wonderful constitution, but, those who are propertyless will never have their rights. Period.

In this case, the FIRST and most important issue is drafting a constitution should be SECURING the right to property, i.e. sweat and blood of those who labour.

Since we have had the benefit of the American experience for over 200 years, there is no excuse whatsoever for the sheer ignorance our so called lawyers have shown on matters of constitution.

Anonymous said...

Philip; are you trying to say the proposed constitution does not protect the right to property? if you are citisizing the attempt to control key resources like land...then I dont know of a country in the world which does not exert control on resources it considers key. For example in the USA,a capitaist country, not every tom dick and harry can acquire significant assets in telecom or IT. I think some senate or congressional committe has the power to veto such acquisition. What kenya is try to do is the same only that for us, land continues to be a critical resource that cannot go without some form of control!. In countries and expecially those which have land as key resouces. ie Island like singapore,Jersey etc Land lies at the centre of their economic models adopted by these countries. Although kenya has plenty of land, I think based on the size of our population, and our poorly managed land tenure system, it is just a matter of time before land becomes the most important resouce for kenyan. I believe government policy should be flexible enough to nature optimum utilisation of land through either implementing a tax regime that discourages idle land(a system I believe used in Europe and USA)or a combination of restriction to land ownership and taxation as proposed in the draft constitution. Before some of you jamp to claim they have bought property in the UK or USA, I am personally refering to land classified for agricualtural use and not residential property. In any case most people buying house abroad tend to get leasehold titles and not freehold.

Philip said...

Anon 9:15.

Thanks for your insight, please tell us more.

Anonymous said...

Well said Phil.

Katiba Sasa! My vote is YES.

Anonymous said...

If No wins, Kenya should consider Zimbabwe style reforms. Wakoloni waende nyumbani!

Anonymous said...

Anon 9:15 has spoken true words of Wisdom.

I have now decided 100%. I will vote YES.

Anonymous said...

Anon 9:15 has spoken true words of Wisdom.

I have now decided 100%. I will vote YES.

Jarateng! said...

Quite learned views and educative comments, I am humbled to be learning divergent views and opinions on the proposed Katiba.

Kudos to the likes of Mwarangethe... Do you lecture man?... Your brain is one well oiled machine.

I do opine that Kenya needs a new Katiba, we need to move on, Land seems to be the most emotive issue at hand and I believe that it should be handled with extreme caution... But regardless katiba ni sasa hivi! Hiyessss!

UrXlnc said...

land issue appears to be very emotive

lets ask ourselves some basic questions

britain has a population of approx 60m compared with kenya which has a population of approx 40m

lets for sake of argument state that britains population is twice that of kenya

kenya has a land area of about 580,000 sq.km

britain has a land area of about 245,000 sq.km

i.e lets say that britain is half the size of kenya by area

now the truth is that there is a long line of kenyans doing everything possible to migrate to britain (leaving there land mass to squeeze into a smaller land mass)

i will leave it at that for now....

in the meantime its YES for me, Katiba SASA

Anonymous said...

Chris is broke;

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Second Liberation said...

Katiba is the start of "Phase 2" of Kenya's independence.

"Phase 1" gave us a semblance of Self determination. But the colonialists continue to have secret and "indirect" (actually "covert" would be the proper word) influence on Kenya. Both politically and Economically.

It doesnt matter whether YES or NO wins. The train cannot be stopped. The cat is out of the bag. Dirty colonial secrets are out in the open.

Kenyans shall unite this time and we shall assert our soverignty. It will not be easy. They will try to divide us on tribal or religious lines by spreading lies, pretending to be Africans in online forums and also hiring thugs (local/foreign) to trigger tribal or religious animosity.
They will try. But they will FAIL because Kenyans are wiser now.

When their "divide and plunder" efforts fail, they will find excuses to launch a global Propaganda offensive together with economic sanctions (and possibly Biological warfare with Cholera germs - just like they did with Mugabe). But that will also fail. Because Kenyans will be united by the TRUTH.

Yes, NOT YET UHURU, but NOT FOR LONG. We shall break colonial chains. Its only a matter of time.

Anonymous said...

I sure hope the constitution, and all other rules in Kenya can enforce themselves. All else is just hot, dry air.

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