Nzamba Kitonga likely to succeed

The manner in which Nzamba Kitonga’s Committee of Experts has summarized the contentious issues proves there is great hope of Kenya getting a new Constitution soon. Kitonga has avoided all the mistakes made by previous groups that have tried to give Kenya a new Constitution since President Daniel arap Moi retired in 2002. His greatest achievement so far has been to avoid issues that have tended to compartmentalize the Constitution to benefit only a section of Kenyan community.

The concentration of powers into the hands of dictators who have ruled Kenya since independence has been through the Executive and the Legislature. On these two Kitonga plans to come up with a Constitution that will establish institutions which will exercise authority “for the benefit of the people and communities in Kenya and must serve the people.” When he invited opinions from Kenyans he only wanted views that would recommend the Executive and Legislature that would serve the people. He did not want any recommendation that would allow a person exercising executive authority to “act in a manner incompatible with the principle of service to the people”.

To achieve that goal Kitonga suggested that Executive and legislative powers should be exercised within what he called “clear limits and subject to proper checks and balance.” On the issue of the Executive and the Legislature, Kitonga identified four contentious issues. The first one concerns the relationship between Parliament and the Executive. Under both Kenyatta and Moi the Executive was the tail that wagged the Parliamentary dog. Parliament was no more than a rubber stamp that only passed legislations that strengthened the hand of the State House.

To correct that situation Kitonga posed two questions to Kenyans before inviting their views: Should we have a Presidential System, with a President and a Cabinet whose members are not MPs? The manner in which that question is framed is extremely revealing. In that question he is telling Kenyans that should they choose the Presidential system, he will never draft a constitution that will create a demigod out of the president the way Kenyatta, Moi were, and, to a certain extent, Kibaki still is.

If Kenyans choose to have a Presidential System, Kitonga will draft something like the American system in which “the President is directly elected by the people and is Head of State and Head of Government, with Vice President as running mate”. If the people give Kitonga the assignment to come up with a Constitution to establish a Presidential System he will not come up with a system that gives the President powers to reward his or her political cronies with cabinet positions. Kitonga will frame up something that will make the Cabinet composed of technocrats who are not even members of Parliament.

Those who expect Kitonga to come up with a Presidential System so as to get all the Government jobs for their own tribes are in for a big shock. The kind of a Constitution Kitonga may draft will be so transparent that Ministers may have to be interviewed publicly before they are appointed by the President. This is the system likely to attract many PNU followers; but when it is examined closely, it will not end up creating a dictator like Kenyatta or Moi who were monsters created by the Constitution itself.

The second most important question posed by Kitonga on the issue of the Executive and tLegislature is: Should there be a Parliamentary System with the Prime Minister as the Head of the Executive, chosen from Parliament? Kitonga explains that in a Parliamentary system the powers to govern are derived from Parliament and the Prime Minister is appointed from a political party or a coalition of parties that have the majority of seats in Parliament. Before Kitonga invited Kenyans’ opinion on this system he told them that the Prime Minister usually appoints the Cabinet form within Parliament and that there may be a ceremonial President as representative Head of State.

This is the system backed by the ODM and the one the majority of Kenyans will support if there is a referendum on the two systems. This is the system Raila Odinga has been fighting tooth and nail to get established in Kenya and he has yet to lose in any political battle. Kitonga is likely to come up with two drafts and then put the matter before the people through a plebiscite. Whichever way the people vote, Kenya will have a constitution within the given deadline and the credit will go to Nzamba Kitonga and Mutula Kilonzo.

The one system that Kitonga may have to throw in the dustbin is what he calls a “mixed” or “hybrid” system with a President and Prime sharing powers. By trying to discourage the people from choosing this system, whose evils are very familiar to them, Kitonga poses the big question to the people of Kenya: How should this power be shared? He then explains that such “mixed” or hybrid systems vary on the extent to which executive power is shared between the President and the Prime Minister. This is the system that encourages polarization of the country along tribal lines. In Kenya the Presidency is seen as the centre of power for the Kikuyus while the Premiership is seen as the centre of power for the Luos. A constitution that brings about such a mixed system will make sure that tribal wars, especially the wars between Kikuyus ad Luos, will always be fought in Kenya.

The many suggestions which have been submitted to Nzamba Kitonga should make him know by now which system they favour. Even after making suggestions about a political system of their choice, Nzamba Kitonga still made Kenyans discuss two more important aspect of governance concerning the manner in which all Kenyan people could be properly represented and served and the manner in which the Executive could be properly accountable. Thousands of suggestions must have been made to Kitonga by all sorts of political parties, institutions and individuals. There is therefore little doubt that the final draft will come up with ways and means of achieving the two goals set by the Committee of Experts.

Nzamba’s draft is also likely to propose a bicameral legislature with an establishment of an upper house probably called the Senate. In the many replies he got from the people, Kitonga must have been given quite a lot of reasons for the establishment of a second House. Among these must have been the need to set up a House of elders who could represent their various communities. These should be, in my view, people with proven record of public service and who are able to represent their communities without creating tribal ill feelings.

Kitonga’s question about the powers of the Second House in relations to both the other House and the Executive must also have been answered in various satisfactory manners. In my view, the Second House should act as a watchdog of the Lower House which should be the House of Representative. The Upper House or the Senate should simply discuss bills passed by the Lower House with a view of detecting any tendency of legislating laws that are not in keeping with the Kenyan culture as it is represented in all communities. The Upper House should have the powers to reject or amend Bills passed by the Lower House.

Among the most important challenges that are facing the Kitonga team concern Devolution powers in the new Constitution. Giving Kenyans guidelines on issues that already have consensus Kitonga clearly explained that the new Constitution would not provide for a system whereby powers of Government are concentrated in a central government. He also explained to the wananchi that the new Constitution would make sure that powers of the Government should be shared between the Central Government and one or more devolved levels of Government. Kitonga also reminded Kenyans that they all agree that devolved government should be democratic and participatory.

Having given them these guidelines he then posed three very important questions: First he wanted to know whether there should be only two or more levels of Government. On this one I believe many Kenyans must have chosen three levels of Government comprising local government, regional assemblies and the central Government. The only major change from the kind of devolution that exists today is the establishment of powerful and democratic regional assemblies.

The second question posed by the Kitonga team on this issue concerns the powers of each level of Government. The only new change, in my view, should be in the establishment of powerful Regional Assemblies which will have powers to pass laws of the Region concerning land, health, roads and education. In my view issues concerning foreign affairs, national security and finance should still remain in the Central Government.

The third question by Kitonga on the issue of devolution concerns how much power to supervise devolved government and ensure equity across the country should be vested in the Central Government. I believe the Central Government should still be very powerful particularly on equity issues.

The last major issue examined by the Kitonga team concerns bringing the Constitution into effect. On this issue Kitonga highlighted three aspects in which Kenyans have consensus which include the fact that the new Constitution should create a fresh start for Kenya to establish the rule of law, protection of human rights and respect for anyone irrespective of their gender, ethnicity, disability, age, religion culture or political persuasion.

The question Kitonga poses for the people of Kenya is how the adoption and coming into force of the new Constitution should affect the holders of political constitutional positions or office such as President, Vice President, Prime Minister, Deputy Prime Ministers, Cabinet and Members of Parliament. Kitonga wants to know whether the holders of these offices should complete their terms. There can only be two answers to these questions. One answer is the current leaders should complete their current terms and the new Constitution is introduced into the country after the next elections.

The second answer is that changes should come as soon as possible in which case Mwai Kibaki should go home and let other leaders contest the next election as soon as possible. There are many reasons which make the first option a more preffered one because in gives Kenyans ample time to implement the major changes brought about by the new Constitution.

Kitonga points out that Kenyans agree that the institutions and office bearers in the new Constitution must have the confidence of the people and be accountable to them. But then he wonders how the adoption and coming into force of the new constitution should affect the unelected constitutional positions or offices such as the Attorney General and Judges. The simple answer to that question is that both the Attorney General and the Judges should be retired and those who want to get their jobs back should reapply for them. This is the one area where big changes are demanded by the majority of the people of Kenya.

Lastly Kitonga reminds Kenyans that all Government actions and every exercise of power should be based on the new Constitution but then he asks what measures should be taken to ensure that Parliament will pass these legislation, which will require many new laws. This is yet another reason why the new Constitution should be implemented after the next General election so as to give Parliament all the time it needs to pass the new laws. All these are questions to which Kitonga has answers from Kenyans and by the look of it he certainly has moved fast in the right direction. If he continues in this manner Kitonga is sure to succeed in giving Kenyans a new Constitution long before the next general elections.