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.