Constitution Making is for all Kenyans

Sad will be the day when constitution making in Kenya is reduced to another battlefield between ODM and PNU. Unfortunately,no sooner did it appear that Mutula Kilonzo was serious about getting the ball rolling again than the country’s major political parties started squabbling about what the future supreme law in the country should look like. According to the ODM, Kenya should have a Parliamentary system with a powerful Prime Minister; and the PNU thinks the country should take a middle line between a Parliamentary system and a Presidential system. They call that a hybrid system like the one that brought about the coalition Government that is still in existence in this country today.

Whereas it is the constitutional right of both ODM and PNU to air their views about what the future of the constitution should look like, it would be very undemocratic for the two parties to attempt to dominate the debate which concerns all Kenyans whether or not they belong to any political party. The reasons for the stand taken by the two political parties are quite obvious. They both want to use the constitution as a political ladder to exclusively climb to power after the 2012 general elections. Whereas there is absolutely nothing wrong with the politicians plotting to retain power after the next general election, there is everything sinful in trying to do so by changing the constitution to favour anyone of them individually or all of them collectively as a political class. 

Constitutions are sacred laws that should safeguard the rights of everyone in society and not just the privileged few. In the past the Constitution of Kenya was systematically changed to ensure power was concentrated in the hands of an individual. The beneficiaries of that scheme are still enjoying the fruits brought to them by the unfavorable laws guaranteed by the changed constitution. It is because of the constitutional changes that took place in Kenya that Jomo Kenyatta underwent a metamorphosis from a freedom fighter to a most dreaded tyrant who made sure political opponents ended up in their graves. These include Tom Mboya, Pio Gama Pinto and J.M. Kariuki.

Due to a bad constitution Jomo Kenyatta’s tyranny was followed by the dictatorship of Daniel arap Moi without the will of the people. Knowing that a faulty constitution put him in office without the mandate of the people, Moi took further drastic steps to secure his position in power even more firmly by a systematic process of changing the constitution to strengthen his hand. The first two presidents of Kenya were helped to change the constitution by a master tactician, Charles Njonjo, who changed the law on their behalf as the country’s Attorney General. In return he was awarded by being kept in the powerful job for a long enough time to become one of the richest and most powerful Kenyans of his time.

The demand by many Kenyans to let the political parties stop from influencing constitution making process in their favour is bound to fall on deaf ears as the politicians know the road to political power in Kenya is through a faulty Constitution which favours a few individuals who are already enjoying the benefit of such powers. Tribalism and nepotism also prosper under a faulty constitution. It is through the powers given to him by the constitution that Jomo Kenyatta filled top Government positions with people from his own tribe. The practice was perfected by Daniel arap Moi who made sure that top public positions were mainly occupied by his people regardless of their academic qualifications.

The Demand by PNU to have a hybrid system is bound to be rejected by Kenyans because they can clearly see the purpose of such a system is simply to make money. The current coalition government is based on a hybrid system which combines a Presidential system together with a Parliamentary system. The outcome is a disaster that has seen the impoverishment of millions of Kenyans as a few individuals in Parliament gluttonously accumulate wealth at the expense of the taxpayers.

It is a system that will see the political death of PNU which at the moment is in a state of dying anyway. If ever there will be a free and fair election again in this country, Kenyans will do everything possible to reject a hybrid system which has gained a notoriety of incompetence, hatred and discontent under the leadership of Mwai Kibaki and Raila Odinga.    

No matter how sinister the plan by ODM is , however , their suggestion to have a Parliamentary system with a powerful Prime Minister is bound to carry the day with the people of Kenya because it is the untested systems whose sins are unknown to the Kenyans. The people already know how horrible the Presidential system is and they also know how much worse the so called hybrid system is.

If ever the constitution is changed to fulfill the wishes of the people of Kenya then sooner or later Kenya will have a Parliamentary system of Government with a federal constitution that will take most powers to the provinces. That is why the shapes and sizes of future provinces will now be the centre of controversy among Kenyan leaders before they agree on the new boundaries.

Other important parts of the constitution which Kenyans must make sure are included in the final document concern the Bill of Rights. In this score the proposals that were made in the so called Wako Constitutions about human rights were actually extremely good for the country though the people were "regimentalized" to reject the entire document through a yes or no referendum.

It is through a good Bill of Rights that many human rights are protected. While formulating a new constitution the people must make sure that the most basic First Generation human rights are in the Bill of Rights. Because Kenya has now become a country with the world’s best example of the widening gap between the haves and the have-nots, then the Second Generation human rights must be included in whatever draft that will be taken to the people to approve or disapprove.

When Mutula Kilonzo, surprisingly backed by Raila Odinga, says the new constitution will be ready for Kenyans by the end of this year he is indeed serious. The constitution the people want actually exits. It is a product of hard work done by Kenyans at the two Bomas Conferences. What Kenyans don’t agree about constitute a very small part of the Bomas proposals and it should not take long to formulate an agreement acceptable to most people. Whatever happens politicians and their political parties must not be allowed to disrupt the process this time.