Harmonized Draft Constitution disturbs tribalists

Nothing is disturbing the tribalists, who have ruled Kenya for the last four decades, more than the Harmonized Draft Constitution, which threatens to move the centre of power from a few despots to the people. The three imperial Presidents who have misruled the people of Kenya since independence have made sure the wealth of the nation benefited only a few privileged classes from their own areas. The process created the evils of nepotism, tribalism and corruption which can only be corrected by a complete overhaul of the political systems established by the dictators in Kenya, which is what the new draft is trying to do. No wonder the tribalists are ganging up to form ethnic political cabals to protect their ill gotten wealth and, if they succeed, they hope to establish a formidable tribal faction to win the 2012 election.

Under Jomo Kenyatta, Kenya saw the creation of a real gap between the haves and the have-nots with the haves apportioning themselves huge tracks of the most fertile land from the former White Highlands in the Rift Valley. The servant-master relationship between the people and the colonialists continued in a different form. The new masters were Jomo Kenyatta’s closest relatives and a few selected people who occupied top positions in his regime.

President Daniel arap Moi did exactly the same as his predecessor and went further to break the law through the most colossal robbery of public funds known as the Goldenberg scandal. Apart from the scandal, Moi committed further crimes of annexing fertile land from the country’s largest water reservoirs on the Mau forest and giving it to his closest family members as well as his most obedient servants from his own community. Today the land grabbers are fighting tooth and nail to retain their looted land against the wishes of the rest of Kenyans.

Mwai Kibaki on his part came in with his own type of scandal known as Anglo Leasing. The scandal was so disgraceful that a few heads in his regime had to roll. His efforts to introduce his own form of nepotism have been vehemently opposed by the entire country. Now his regime hangs on a thin thread kept alive by the coalition he has established with Prime Minister Raila Odinga. Should the coalition collapse the chances of his serving the rest of his term comfortably are extremely remote.

What the three regimes have in common is to wish for a future government that would protect their huge ill-gotten wealth through a despotic government established by one of their own. The Kikuyu-Kalenjin-Kamba alliance is supposed to achieve that goal. A government of Uhuru Kenyatta, Kalonzo Musyoka and William Ruto would make sure the gap between the haves and the have-nots would grow even wider. The so called KKK alliance will therefore do everything possible to oppose the parts of the Harmonized Draft Constitution calling for a paradigm shift that removes the power from a few privileged families to the people.

The relevant part of the Draft constitution which gives the tribal despots sleepless nights concerns land. The proposed law says in Chapter Seven , Article 77 that land is Kenya’s primary resource and the basis of livelihood for the people, and shall be held, used and managed in a manner which is equitable , efficient, productive and sustainable. It further says the national Government shall define and keep under review a national land policy ensuring the principles of equitable access to land and associated resources. That part of the proposed Constitution can bring together Uhuru, Ruto and Balala despite their past differences. Now they all paddle in the same canoe as they symbolize the elite who own unfairly huge tracks of land while the majority of the people of Kenya have nothing at all. Some of the huge pieces of land owned by Balala’s people down at the Coast have been left idle by absentee landlords who live in the Middle East while the true owners of the land , the Mijikenda people, are still treated as squatters,forty years after independence.

Tribalists will also be most disturbed by the section of the proposed Constitution which deals with basic requirements for political parties. Article 114 requires every political party to promote the objects and principles of the rule of law by promoting and upholding national unity. In the past tribalists have survived politically by forming parochial ethnic political parties which they have used as ladders to high national positions. If the Harmonized Draft Constitution goes through, political parties will have national character as prescribed by the Political Parties Act of 2007 which , among other things,prohibits the registration of political parties founded on ethnic, age , tribal, racial , gender, regional, linguistic,corporatist, professional or religious basis or which seeks to engage in propaganda .

Tribalists will particularly oppose this part of the proposed draft because it demands political parties to have a democratically elected governing body; and abide by the democratic principles of good governance, promote and practise democracy through regular, fair and free elections within the party, and promote discipline within it. That particular demand of the draft Constitution simply means the ownership of tribal political parties as personal properties will be a thing of the past. It may also mean democracy will be introduced in political parties’ nomination process making the obnoxious hand picking of favorite candidates by despotic leaders, also a thing of the past. Personally I would have liked the Harmonized draft to go even further and demand primary elections for all political parties to be supervised by the IIEC.

It is my hope that that proposal will be taken seriously by the CoE while drafting the final version. After all, the Harmonized Draft demands political parties to conduct their affairs in a manner that promotes democracy and peaceful politics. It also demands them to respect the right of others to participate in the political process, including, persons with disabilities and other minorities. Well organized, transparent and democratic primary elections in Kenya will ensure that the Harmonized Draft’s demand for political parties to respect and promote human rights and fundamental freedoms, and gender equality and equity, will be achieved very easily.

Tribalists in the past have survived politically by engaging in tribal warfare. They have remained at the top leadership of their parties by terrorizing their local opponents as well as their national rivals. The Harmonized Draft Constitution prohibits political parties from engaging in or encouraging violence by, or intimidation of, its members, supporters, opponents or any other person. It also criminalizes the establishment or maintenance of paramilitary forces, militia or similar organizations. If the Harmonized Draft Constitution is passed then engaging in bribery or other forms of corruption in political parties will be the thing of the past.

The other part of the Harmonized Draft Constitution which will be vehemently opposed by the tribalists concerns the Executive. For forty years since independence tribalists have benefited from an imperial president with so much powers that only rewarded his own people. To continue to enjoy the fruits of independence exclusively as members of the privileged elite the tribalists will fight to maintain power through an imperial president whom they hope will come from one of the three tribal grouping of the so called KKK.

The part of the Harmonized Draft Constitution which they would like to get rid of is Article 179 which says the Prime Minister shall be the head of the Government and shall preside at the meetings of the Cabinet. This is something extremely hard for the tribalists to swallow because they know none of them, as leaders of tribal organizations masquerading as political parties, can succeed in accumulating enough members of Parliament to qualify to be appointed Prime Minister. So they spread lies that it would be most unfair to give so much powers to a prime minister “who is not elected by the people.”

They conveniently forget what Article 180 of the Harmonized Constitution says. That part of the Draft demands that within seven days following the summoning of the National Assembly after a general election, or whenever necessary to fill a vacancy in the office of Prime Minister, other than on the occasion of a vote of no confidence, the State President shall appoint as Prime Minister in a manner that clearly indicates the people have a major say in that appointment.

First the State President has to consider the member of the National Assembly who is the leader of the largest political party or coalition of parties, represented in the
National Assembly. Tribalists forget that no one becomes the leader of the largest political party in the National Assembly without the consent of the voters, who, for all practical purposes, are the people of Kenya.

The Draft Constitution says if the leader of the largest party or coalition of parties has been unable to command the confidence of the National Assembly, the member of the National Assembly who is the leader of the second largest political party or coalition of parties represented in the National Assembly will be the next candidate for Premiership to be considered by the State President. No one becomes the leader of the second largest party in the National Assembly without the consent of the people.

There can be no confusion as to who the leaders of these parties are because the Harmonized Draft Constitution clearly says each party participating in a general election of the National Assembly shall designate a person as the leader of that party for purposes of being selected for the appointment of the Prime Minister.

Anticipating possible disagreements in this sensitive issue of the appointment of the Prime Minister, the Draft gives the State President a third option where neither of the persons contemplated in the first option or the second option has been able to command or retain the confidence of the National Assembly. This third option says that the State President shall propose to the National Assembly the name of a member who, in the State President’s opinion, may be able to command the confidence of the National Assembly.

According to the Draft on receiving that proposal from the State President under clause (3), the Speaker shall summon the National Assembly and introduce the proposal from the State President. The Draft says within seven days of the Speaker receiving a proposal from the State President, the Speaker shall call a vote in the National Assembly to
confirm the appointment of the person proposed by the State President. And if that process also fails then the National Assembly shall by a vote supported by a majority of members present and voting nominate a member of the National Assembly for appointment as the Prime Minister. Parliament will therefore vote to elect a Prime Minister when all the other options have failed. But tribalists like to trumpet this aspect loudest magnifying the none participation of the people. The tribalists don’t like the people to know that the first option proposed by the Harmonized Draft Constitution reflects the wishes of the people.

The role of the people in appointing the Prime Minister is so important that if, within sixty days of the State President first appointing a person to be Prime Minister, no person has been confirmed or nominated for appointment, the National Assembly shall stand dissolved and the Independent Electoral and Boundaries Commission shall conduct a fresh general election for the National Assembly. That is what the tribalists don’t want to hear.