Whenever Raila Odinga rocks the fragile ODM-PNU boat he has something up his sleeve. Last time he did so was last year at Kilaguni when he was demanding more powers as Kibaki’s equal partner. Now he has done it again for more or less the same reason. Section 15 (a) of the Constitution, and Section 4 (1) of the National Accord and Reconciliation Act, which he claims confer on him the powers to suspend ministers William Ruto and Samuel Ongeri for a period of three months do not vest him with such powers and Raila knows it.
Section 15 (a) of the Constitution legitimizes the office of the Prime Minister, making it protected by the supreme law of the land. Section 4. (1) of the National Accord and Reconciliation Act says the Prime Minister shall have authority to co-ordinate and supervise the execution of the Government, including those of Ministries. It does not specifically say that this supervision shall include the suspension of any Minister. The Constitution gives the powers to fire Ministers to the President. Obviously the Prime Minister is not happy with this state of affairs and, if anything, he has succeeded in making the issue a matter of national debate even though the Attorney General has ruled against him.
Kibaki’s rebuttal was indeed supported by the law. He said the basis of appointment, suspension and removal of a Minister under the Coalition Government as per the Constitution of the Republic of Kenya, the National Accord and Reconciliation Act and the Agreement on the Principles of Partnership of the Coalition government is full consultation and concurrence between the President and the Prime Minister. He added that there had been no consultation between him the Prime Minister on the suspension of Ruto and Ongeri as announced by Raila at his Press Conference.
Now the matter is so serious that the ODM has threatened to boycott Cabinet meetings – an act that obviously threatens the very existence of the coalition Government. Whether Raila should have powers to suspend Ministers or not, however, is beside the point. The question that concerns the majority of the people of Kenya is why Raila thought it necessary to suspend Ruto and Ongeri. His reasons are sound and convincing. He said he was taking this action because two recent investigations, the forensic audit by PwC on the maize scandal, and the Report of the Internal Auditor General on Free Primary Education, have laid credible foundations for the two ministers to be investigated.
The law may very well be on Kibaki’s side but the people on this issue of the fight against corruption are on Raila’s side. His determined resolution to expose corruption wherever it exits seems to be more focused than that of the President. People believe that the Prime Minister’s resolute and very strong willed fight against corruption ought to be backed by the law and probably the only way to do so is to renegotiate the National Accord to give him powers to suspend suspected corrupt Ministers. At the moment the law is not specific on this issue and those backing the Prime Minister are overstretching the meaning of the word “supervision”.
Sharing a platform with President Kibaki at a workshop of Permanent Secretaries on Strategies to eliminate corruption earlier this month the Prime Minister seemed to realize his position did not empower him to fire any Minister or Permanent Secretary. Talking about what he described as institutional credibility he simply “recommended” to the President to direct the Minister of Education and the Permanent Secretary to step down.
The Prime Minister then said he intended to direct the Permanent Secretary for Performance Contracting to revise all existing Contracts and insert a clause that stipulates that once the ministry as a whole or individual units in it are charged with serious malpractices, the person who heads the ministry or the units involved automatically and voluntarily step down, irrespective of whether he or she is directly implicated in that case.
This threat must have worried the President and his people in the PNU. Something had to be done as the Prime Minister appeared to be the leading light in the fight against corruption. Both internationally and locally he had totally overshadowed the President in that struggle. He was the people’s Prime Minister. To silence him the PNU faction of the Government leaked to the Media the PwC report implicating Raila’s Administrative Secretary, Karoli Omondi and his Permanent Secretary Dr. Mohammed Isahakia, in maize scandal. But instead of silencing Raila the move only made the Prime Minister even more unwavering. He asked his close associates in his office to step down to enable further investigations.
The move put Kibaki in a tight corner. Raila became an even greater hero to the people and the international community. Kibaki had to do something not to be left so far behind in the vital war against corruption. No sooner did Karoli Omondi and Mohammed Isahakia announce their stepping down than a terse statement issued from State House asked the two officials from the Prime Minister’s office to “step down” to facilitate investigations. Together with Karoli and Isahakia were six other officers asked by the President to step down, including the Permanent Secretary, Ministry of Agriculture, Dr. Romano Kiome, Permanent Secretary, Ministry of Special Programmes, Ali Mohamed, Permanent Secretary, Ministry of Education, Prof. Karega Mutahi, Managing Director, National Cereals and Produce Board, Gideon Misoi, Mr. Boit, Sales and Marketing Manager - National Cereals and Produce Board, and Mr. Langat, General Manager -National Cereals and Produce Board, who is currently on suspension.
To remain in the lead in the fight against corruption Raila came up with a bombshell of suspending Ruto and Ongeri. That has not gone down well with the rebels in ODM backed by the PNU. The current debate about the powers of the Prime Minister is taking place in the manner in which Raila planned and executed. The nation can see clearly that he needs to have powers to discipline Ministers. The people can also see that corruption will soon be a thing of the past if Raila had the powers to suspend suspected corrupt Ministers. So whether the law is on his side or not the people would like him to have the powers to hire and fire.
The most puzzling question in the current PNU-ODM power struggle is whether it really threatens the coalition Government. All the ODM Ministers have categorically said they have no intention to resign. Kibaki has no Constitutional powers to fire them. All they want to do is create a crisis so that their grievances can be heard. And they have plenty of these. To begin with they are extremely unhappy with the outcome of the Naivasha consensus on the constitution. Though the party was fully represented at the Naivasha talks PNU, backed by ODM rebels had an upper hand. The outcome is a constitution that creates a monster of a dictator and a total disregard of some vital human rights.
If possible the ODM would like to see a hybrid Constitution which deliberately creates two centres of power which will automatically have checks and balances. The advantages of such centers of power can be seen today when Kibaki is forced to fire corrupt officials because the Prime Minister would simply not allow him to remain lackadaisical on such sensitive issue. The ODM knows it is the most popular party among the people and if the worst comes to the worst and the country is forced to go for early elections there are still very good chances that it will form the next Government.
At the moment Raila and his people would like Kofi Annan and his team to come and mediate in the current crisis. If that happens there is a very good chance of renegotiating the National Accord to give the Prime Minister equal powers with the President. That move however is likely to face a very vigorous opposition from PNU and ODM rebels. These two can make sure that even if Annan comes they will frustrate his efforts to arbitrate. The move to boycott Cabinet meetings, however, is not a wise one because it will only make Kibaki rule without checks and balances.
Tuesday, February 16, 2010
Thursday, February 11, 2010
CoE must rectify PSC’s bungles
The Parliamentary Select Committee on Constitutional Review has committed an unforgivable sin against the people of Kenya. Meeting in Naivasha ostensibly to reach a consensus on contentious issues, the MPs who constitute the PSC assigned themselves the responsibility to write a new constitution for the people of Kenya; and in that process they butchered the Nzamba Kitonga Draft in such a wicked manner as to end up with a Constitution to protect their own privileged positions, marginalize the poor and muzzle the Fourth Estate.
Of all the crimes they committed at Naivasha that of denying the people of Kenya access to information tops the list. Following the mutilation of that vital part of the Bill of Rights, the Committee hoodwinked the people by making a proposal for a watered down legislation that pretends to protect the rights of the people to know. Realizing the importance of access to information for Kenyans, Nzamba Kitonga had suggested in his first Harmonized Draft Constitution of November 17, 2009, to have a whole article dealing with that critical aspect of human rights.
He therefore suggested in Article 52. (1) that every citizen had the right of access to—(a) information held by the State; and (b) any information that was held by another person and that was required for the exercise or protection of any right or fundamental freedom. The significance of this part of the Nzamba Kitonga proposal is so important given the fact that until today the people of Kenya are kept in the dark about a lot of information they ought to know.
Kenyans’ money has been used to gather information about many mysterious events such as the death of Robert Ouko and the Goldenberg scandal; and yet when that information is obtained it is kept away from the people in the most unlawful and scandalous manner. Recently an expensive exercise of conducting national census was launched and the results are now the most tightly guarded secret of the Government. It is said the real reason is the fact that Somali nationals who have illegally acquired Kenyan citizenship now number two million and the Government is too embarrassed to announce the figure. Part (b) of that Article is important because there are many private institutions that hold vital information that may be needed for the protection of some fundamental rights. Such institutions or persons must not deny the people access to information they need.
In his first Draft, Nzamba Kitonga also suggests in Article 52.(2) that every person has the right to demand the correction or deletion of untrue or misleading information that affects that person. This is a fair demand in situations where there are both freedom of expression and freedom of information. Where information is circulating freely, factual errors are bound to occur, and when they do, the need for corrections should be protected by the Constitution. Another important suggestion made by Nzamba Kitonga is the need for the State to publish and publicize any important information affecting the nation. This was taken care of in Article 52.(3) of his first Draft.
It so happens that the people meeting in Naivasha have everything to gain by the continued secrecy of the Government on a number of issues. It is not, for example, in the political interest of Uhuru Kenyatta, for some facts about his father’s regime to be laid bare for all to see. Who, for instance, killed Tom Mboya and Pio Gama Pinto? What information does the Government have about those assassinations? It is not in the interest of William Ruto for certain information about Moi’s despotism to be made public because that is when the Agriculture Minister was among the most favoured boys of the dictator. Public land was grabbed and a lot of people become multibillionaires through sleaze, bribery and corruption. Ruto does not want that information out.
It is therefore not a wonder that Nzamba Kitonga’s Article 52 was not changed at all even after public debate. It was not considered a contentious issue. But due to the rearrangement of the articles of the Revised Harmonized Draft following the public debate, Article 52 was submitted to the PSC as Article 40 on 8th January 2010, completely unaltered. No even a comma was changed! At that time little did the CoE realize they were submitting their work to the butchers of Naivasha. What followed was a shocking mutilation of the people’s right to know. The entire Article on Access to Information was chopped off. Instead one line was added to the Article on the Freedom of Expression saying Parliament shall, by legislation, provide for the right to access of information. There is everything wrong with that suggestion which can lead to not only keeping the people in perpetual darkness and ignorance but also to limiting freedom of the media.
Given the fact that the recommended legislation will be framed and shaped by the same people who were in Naivasha and others like them who happen to be Members of Parliament, there is very little hope that that legislation will be the Freedom of Information Act this country needs. To begin with the MPs seem to enjoy the current secrecy protected by the Official Secrets Act which legitimizes the criminal act of denying the people vital information they need to enhance democratic space in the country. Section 20 of this horrible law says any person who is guilty of an offence under this Act for which no penalty is specifically provided shall be liable to imprisonment for a term not exceeding fourteen years.
This atrocious and most repulsive legislation goes against Article 19 of the Universal Declaration of Human Rights which states that everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and TO SEEK, receive and impart information and ideas through any media and regardless of frontiers. Paradoxically this freedom to SEEK information does not exist in our current Constitution!
Section 79 of our current Constitution says except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence.
The word “seek” does not appear anywhere in Section 79 of our Constitution. That makes the work of the Fourth Estate extremely difficult. When the media have no information they are virtually muzzled. Given the fact that Kenya’s vibrant Fourth Estate is the only remaining institution that upholds the democratic right to free expression, the threat to deny it freedom of information is a threat to democracy itself. Nzamba Kitonga and his team must save this nation by reinstating Access to Information as a full Article in the Constitution the people of Kenya desire to have.
Of all the crimes they committed at Naivasha that of denying the people of Kenya access to information tops the list. Following the mutilation of that vital part of the Bill of Rights, the Committee hoodwinked the people by making a proposal for a watered down legislation that pretends to protect the rights of the people to know. Realizing the importance of access to information for Kenyans, Nzamba Kitonga had suggested in his first Harmonized Draft Constitution of November 17, 2009, to have a whole article dealing with that critical aspect of human rights.
He therefore suggested in Article 52. (1) that every citizen had the right of access to—(a) information held by the State; and (b) any information that was held by another person and that was required for the exercise or protection of any right or fundamental freedom. The significance of this part of the Nzamba Kitonga proposal is so important given the fact that until today the people of Kenya are kept in the dark about a lot of information they ought to know.
Kenyans’ money has been used to gather information about many mysterious events such as the death of Robert Ouko and the Goldenberg scandal; and yet when that information is obtained it is kept away from the people in the most unlawful and scandalous manner. Recently an expensive exercise of conducting national census was launched and the results are now the most tightly guarded secret of the Government. It is said the real reason is the fact that Somali nationals who have illegally acquired Kenyan citizenship now number two million and the Government is too embarrassed to announce the figure. Part (b) of that Article is important because there are many private institutions that hold vital information that may be needed for the protection of some fundamental rights. Such institutions or persons must not deny the people access to information they need.
In his first Draft, Nzamba Kitonga also suggests in Article 52.(2) that every person has the right to demand the correction or deletion of untrue or misleading information that affects that person. This is a fair demand in situations where there are both freedom of expression and freedom of information. Where information is circulating freely, factual errors are bound to occur, and when they do, the need for corrections should be protected by the Constitution. Another important suggestion made by Nzamba Kitonga is the need for the State to publish and publicize any important information affecting the nation. This was taken care of in Article 52.(3) of his first Draft.
It so happens that the people meeting in Naivasha have everything to gain by the continued secrecy of the Government on a number of issues. It is not, for example, in the political interest of Uhuru Kenyatta, for some facts about his father’s regime to be laid bare for all to see. Who, for instance, killed Tom Mboya and Pio Gama Pinto? What information does the Government have about those assassinations? It is not in the interest of William Ruto for certain information about Moi’s despotism to be made public because that is when the Agriculture Minister was among the most favoured boys of the dictator. Public land was grabbed and a lot of people become multibillionaires through sleaze, bribery and corruption. Ruto does not want that information out.
It is therefore not a wonder that Nzamba Kitonga’s Article 52 was not changed at all even after public debate. It was not considered a contentious issue. But due to the rearrangement of the articles of the Revised Harmonized Draft following the public debate, Article 52 was submitted to the PSC as Article 40 on 8th January 2010, completely unaltered. No even a comma was changed! At that time little did the CoE realize they were submitting their work to the butchers of Naivasha. What followed was a shocking mutilation of the people’s right to know. The entire Article on Access to Information was chopped off. Instead one line was added to the Article on the Freedom of Expression saying Parliament shall, by legislation, provide for the right to access of information. There is everything wrong with that suggestion which can lead to not only keeping the people in perpetual darkness and ignorance but also to limiting freedom of the media.
Given the fact that the recommended legislation will be framed and shaped by the same people who were in Naivasha and others like them who happen to be Members of Parliament, there is very little hope that that legislation will be the Freedom of Information Act this country needs. To begin with the MPs seem to enjoy the current secrecy protected by the Official Secrets Act which legitimizes the criminal act of denying the people vital information they need to enhance democratic space in the country. Section 20 of this horrible law says any person who is guilty of an offence under this Act for which no penalty is specifically provided shall be liable to imprisonment for a term not exceeding fourteen years.
This atrocious and most repulsive legislation goes against Article 19 of the Universal Declaration of Human Rights which states that everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and TO SEEK, receive and impart information and ideas through any media and regardless of frontiers. Paradoxically this freedom to SEEK information does not exist in our current Constitution!
Section 79 of our current Constitution says except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence.
The word “seek” does not appear anywhere in Section 79 of our Constitution. That makes the work of the Fourth Estate extremely difficult. When the media have no information they are virtually muzzled. Given the fact that Kenya’s vibrant Fourth Estate is the only remaining institution that upholds the democratic right to free expression, the threat to deny it freedom of information is a threat to democracy itself. Nzamba Kitonga and his team must save this nation by reinstating Access to Information as a full Article in the Constitution the people of Kenya desire to have.
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