Kenyans back Nzamba’s hybrid system

Nzamba Kitonga’s Revised Harmonized Constitution has at last been submitted to the Parliamentary Select Committee on Constitutional Review (PSC). His decision to recommend a hybrid form of Government is likely to come under heavy criticism. But this criticism will only come from a few individuals who are so used to the misuse of power provided to them by faulty Constitutions which have erroneously concentrated too much power in the hands of the dictators of Kenya.

Very soon the people who have been opposed to a new Constitution for Kenya will be exposed. Kenyans will have an opportunity to identify individuals who have benefited in the past due to a constitution that created a privileged class. The individuals will come up in arms against the Nzamba Kitoga proposals. They will claim it creates two centres of power that would confuse Kenyans. They will even make every effort to frustrate what has been achieved so far. This will be done in Parliament where all sorts of criticism will be made against the hybrid system recommended by the Committee of Experts (CoE).

Those piling up blame on Nzamba Kitonga and his team are being deliberately malicious. They are only attempting to change the subject of restructuring the Constitution of Kenya. They want to hoodwink the people to forget the most important changes that need to take place in the country to bring about the desired democracy. They know very well that none of the ideas expressed in the Harmonized Draft constitution and its revised form are originally Nzamba Kitonga’s.

All that Nzamba has done so far , as he is mandated to by Section 23 of the Constitution of Kenya Review Act 2008, is to articulate the respective merits and demerits of proposed options for resolving the contentious issues; he has also made recommendations to the Parliamentary Select Committee on the resolution of the contentious issues in the context of the greater good of the people of Kenya. Just as the law required him to, he has prepared a harmonized draft Constitution for presentation to the National Assembly. So far that is all that Nzamba Kitonga has done.

From now on the law allows him to facilitate civic education in order to stimulate public discussion and awareness of constitutional issues. Soon he will be required by law to liaise with the Electoral Commission of Kenya to hold a referendum on the Draft Constitution. The law also allows him to do such other things as are incidental or conducive to the attainment of the objects and principles of the review process. To blame him for anything he has done so far is to lose sight of what the law has mandated the CoE to do. Rather than condemning them they should be congratulated for a job very well done so far.

Despite all these negative efforts by the privileged class, the struggle to get a new constitution in 2010 must continue. What Nzamba Kitonga has proposed so far agrees with the aspirations of the people of Kenya who have suffered untold misery due to despotism protected by faulty Constitutions. A purely Presidential system with a powerful Head of State who is also the head of Government will not solve the problem of despotism in Kenya. Likewise an extremely powerful Prime Minister could very easily end up just as despotic as the three Presidents who have misruled Kenya so far.

That is why Nzamba Kitoga suggests that a Presidential or a Parliamentary system would polarize the country. According to him, public preference for a President and a Prime Minister points to, and reinforces a collective executive system of government that accommodates these offices while maintaining a clear distinction between offices of State and offices of government as laid out in the Harmonized Draft Constitution. The proposal to have a hybrid system, therefore, does not come from Nzamba Kitonga. It comes from the people of Kenya who clearly recommended to Nzamba Kitoga to draft a Constitution that deliberately includes both a President and a Prime Minister.

The collective executive system Nzamba Kitonga is talking about is in fact the hybrid system. He says the notion of a collective executive has been further clarified by indicating that executive authority under the constitution derives from the people and shall be exercised by their elected representatives in accordance with the Constitution. According to Kitonga the executive is defined more clearly, with the authority of the State President in decision making delineated, and the holding of regular consultations between the State President and the Prime Minister elaborated. While the Prime Minister runs government, the State President has a supervisory role that is evident in the stated requirement that the Prime Minister reports to the President.

The people told Kitonga to come up with a Constitution that clearly defines the duties of the State President as opposed to the duties of a Prime Minister. They also told him to come up with very well defined duties of the Prime Minister which cannot be confused with the duties of the President. By creating a proper delineation of powers between the State President and the Prime Minister, Nzamba Kitonga was simply obeying the people of Kenya. The people of Kenya also recommended to Nzamba Kitonga to come up with a revised draft that creates a clear distinction between offices of the State and Offices of the Government and he has just done that. As a matter of fact he says in his statement that the CoE considered these views of the people before it decided to stand by its original proposal of a hybrid system of the Government.

According to the Constitution of Kenya Review Act of 2008 the matter now is in the hands of the PSC which must not forget that Nzamba Kitonga has handed them the revised harmonized draft backed by the majority of the people of Kenya. According to Section 33. (1), of the Act, the PSC shall, within twenty-one days, resubmit the draft Constitution and report presented to it under section 32(c) to the Committee of Experts with the recommendations agreed upon as a result of its deliberations, and the Committee of Experts shall revise the draft Constitution taking into account the achieved consensus. Before that happens Kenyans will keenly want to know which members of the PSC will go against their wishes and oppose the Nzamba Kitonga proposals.

In the Committee there are a number of ODM MPs who are likely to back the Nzamba proposals even though originally they were for a Parliamentary system headed by a powerful Prime Minister. Kitonga’s proposals are most likely bound to be opposed by PNU MPs who have been vehemently opposed to what they blindly refer to as “two centres of power”. What the PNU MPs conveniently forget is that the establishment of two centres of powers is the wish of the people of Kenya who have had enough of dictatorial concentration of powers in the hands of the President. Those fears also make them reject too powerful a Prime Minister. Whatever revisions the PSC makes to the Nzamba proposals, they must bare in mind that Kenyans are scrutinizing what they are doing and waiting for them to answer for whatever sins they commit now. That will be in 2012. Whoever sits in the PSC will find it extremely difficult to convince the people of Kenya to reelected him or her to Parliament if he or she rejects the Nzamba Kitoga proposals now.

The responsibility in the hands of the PSC is big. They must put the interest of the country above those of their various political parties. Whatever changes they introduce to the Nzamba proposals, they must never forget the fact that the people of Kenya have spoken to the CoE and expressed their wishes to have two centres of power in the future Constitution of Kenya. The problem with some of the politicians in the PSC is that they look at the proposed constitution as an instrument to pave their way to political power that will protect both their positions and wealth. If there is any such a person in the PSC then he or she should be exposed to the people of Kenya as the stumbling block that stands on their way to establish a true democracy in the country.

It so happens that the major changes that are needed in Kenya before we can have such a democracy depend on constitutional reforms. The people of Kenya have, by and large, indicated in more ways than one, the type of constitution they want. It is a constitution that will guarantee that the political powers in Kenya belong to the people .Their leaders in Parliament must not be allowed to usurp those powers.