The stand taken by various groups either supporting or opposing the Proposed Constitution proves that Kenya is at war between the rich and the poor. The supporters of the current constitution, which strongly favours the rich against the poor, are hiding behind the “NO” group claiming to be dissatisfied with the Proposed Constitution. Their main bone of contention is ostensibly based on issues concerning the Kadhi courts, abortion and land. But in reality they are scared stiff of the proposals of the Draft Constitution because it is taking most drastic steps to introduce real democracy and equality in this country.
The “NO” supporters are people who have acquired a lot of wealth under the dictatorships of Jomo Kenyatta and Daniel arap Moi. Both the first and the second Presidents of this country used land as a major political weapon with which to bribe their supporters. Public land, including forests and even public toilets, were illegally grabbed and allocated to individuals who became multimillionaires after selling them. Now they are mobilizing the “NO” votes by bribing gullible church leaders to make all sorts fictitious criticism against the Proposed Constitution.
The war against the parts of the constitution supporting the people’s rights started in Naivasha when the PSC was examining the first Harmonized Draft Constitution by the CoE. At that time the Second Generation Human Rights recommended by Nzamba Kitonga were all wiped out by the same parliamentarians now led by William Ruto to oppose the Proposed Constitution. Their real anger is the fact that Nzamba Kitonga actually reinstated the Second Generation Human Rights in the final draft which is now the Proposed Constitution.
Nzamba Kitonga’s Harmonized Draft had made very commendable recommendations on social security which must haven offended the likes of William Ruto in the PSC. In Article 61, for example, Kitonga suggested that every person had the right to social security which compelled the State to provide appropriate social security to persons who were unable to support themselves or their dependants. Nzamba Kitonga had suggested in Article 62 that every person had the right to health care and that no person would be refused emergency medical treatment.
In Article 63 Kitonga suggested that every person had the right to education and that the State would institute a programme to implement the right of every child to free and compulsory pre-primary and primary education and in so doing would pay particular attention to children with special needs. In that draft Kitonga also suggested that the State would take measures to make secondary and post secondary education progressively available and accessible. In Article 64 Kitonga called for the right of every person to accessible and adequate housing and to reasonable standard of sanitation. Article 65 of the Harmonized Draft said that every person had the right to be free from hunger and to adequate food of acceptable quality. Article 66 of the Harmonized Draft Constitution said every person had the right to clean and safe water in adequate quantities.
When William Ruto and other Parliamentarians had a look at Nzamba Kitonga’s proposals at Naivasha they changed all the above Second Generation Human Rights into a small Article 40 they called “Economic and Social Right” that said that the State shall take legislative, policy and other measures including the setting of standards to achieve the progressive realization of the right of every person to social security, health, education, housing, food and water. In other words the rich people meeting in Naivasha under the auspices of PSC changed the command of the Constitution into a proposal to make legislation in future to look into people’s welfare. They did not like the categorical demand from the Constitution asking the State unambiguously to provide Second Generation Human Rights. They did not want the Constitution to bridge the gap between the haves and the have-nots.
They therefore mutilated the Nzamba Kitonga’s Harmonized Draft by removing every aspect of the Constitution that boosted the lives of the ordinary wananchi. They also took stern measures to fight the Fourth Estate by removing the article which called for access to information. Luckily the mutilated Draft from the PSC had, by law, to go back to the CoE to incorporate the views of the people before the Proposed Draft was handed back to Parliament for debate.
It was when the Draft was taken back to him that Nzamba Kitonga reinstated the Second Generation Human Rights which now appear in Articles 43 called Economic and Social Rights which says every person has the right to highest attainable standard of health, which include the right to health care services, including reproductive health care; to accessible and adequate housing, and reasonable standards of sanitation; to be free from hunger and to have adequate food of acceptable quality; to clean and safe water in adequate quantities; to social security and to education. This Article also says a person shall not be denied emergency medical treatment and that the State shall provide appropriate social security to persons who are unable to support themselves and their dependants.
These are the parts of the Constitution which anger Daniel arap Moi and William Ruto with his gang of Kalenjin MPs. Nzamba Kitonga came to the rescue of the Fourth Estate by reinstating in Article 35 the important human right issue of Access to Information which MPs had deleted. For all the above reasons the Fourth Estate in the country has an obligation to inform the people the importance of voting YES even if in doing so they will make Ruto and Churchmen accuse them of being biased.
Kenyans are about to go through a historic moment when they will determine whether or not to accept the Proposed Constitution. The media have been challenged to remain neutral on this matter and as a matter of fact churchmen have accused journalists of taking sides by openly backing the Proposed Constitution. Following that complaint the media must not start downplaying the debate on the Proposed Constitution. This is the time when journalists should continue to do the good work they are doing now of telling the people the truth about the content of the Proposed Constitution in order to educate them.
Journalists must not ignore their very important ethical principle of Accuracy. As a matter of fact the very first ethical principle of the Code of Conduct for the Practice of Journalism in Kenya is about Accuracy and Fairness. It says that the fundamental objective of a journalist is to write a fair, accurate and an unbiased story on matters of public interest. It goes on to say that all sides of the story shall be reported, wherever possible. By failing to tell the people the truth every time opponents of the Proposed Constitution deliberately misinterpret its articles, the journalists are taking the risk of being unprofessional.
In covering the constitutional debate currently taking place in the country journalists have an obligation to tell the truth and nothing but the truth about both what is going on in the debate and what the subject matter of the debate is all about. Journalists have a professional duty to tell the people of Kenya the truth about the differences between the current Constitution of Kenya and the Proposed Constitution. It is their professional duty to tell the people of Kenya the weakness and strength of the two constitutions' Bill of Right. If they do so sincerely and professionally they will expose the fact that Proposed Constitution is far better for the people of Kenya than the current one. All they need to do is to tell the truth as accurately as possible. It is their professional obligation to do so.
Tuesday, April 13, 2010
Friday, April 9, 2010
Referendum: YES vote sure to win
Despite all the hullabaloos by the Clergy and the William Ruto camp, the Proposed Constitution is sure to go through the referendum successfully and be accepted by Kenyans as their future supreme law.
Yet there are powerful forces against it. Composed of radical anti- Islam American Christian fundamentalists and the Kenyan tycoons who have always been protected by the current Constitution in their quest for sucking the blood of the people, the forces against the Proposed Constitutions are extremely strong; but even more formidable are the forces that back it. These are made up of the combination of the powers behind the American Government, the Kenyan Prime Minister, the Kenyan trade union, the President, the Vice President, the two Deputy Prime Ministers and the civil society.
Backed by a team of about 30 members of Parliament and the former President Daniel arap Moi, Ruto’s squad is likely to create a lot of serious obstruction; but there is no way that impediment can be beyond the means of Raila Odinga, Mwai Kibaki, William ole Ntimama, Musalia Mudavadi, Charity Ngilu, Gitobu Imanyara, Kiraitu Murungi, Kalonzo Musyoka, Mutula Kilonzo, Danson Mungatana to crush. On that list one could also add Barack Obama and Kofi Annan whose powers and influence spread beyond many boundaries.
In other words, the combination of all these people forms such a frightening political power bloc that can be stopped by almost nothing at all to achieve virtually anything they want. The passage of the Proposed Constitution through Parliament, for example, was not a mere accident. It was within the predetermined scheme of the group which foresaw no possibility of any amendment to the Proposed Constitution during the Parliamentary debating period. Hence the stage managed dramatic walkouts which achieved that goal.
Succumbing to the pressure from the American Christian fundamentalists, who are said to have poured in a lot of money into some Kenyan pockets, the Clergy in this country has made a lot of noise about the Kadhi courts and the clause on abortion. But that was before their closed door meeting with Agwambo and Mwai Kibaki. After that meeting they seem to have softened their position; and by the look of things, religious leaders are likely to back the Proposed Constitution without any amendment, hoping that that will follow after the referendum. The Clergy may even agree to sign a MoU with Kibaki and Raila though they know how slippery the two politicians are when it comes to memoranda of understanding.But it may be the only way of saving face after realizing the mood of the country is for a YES vote.
Deep inside their hearts the religious leaders are Kenyan nationalists who have been fighting for the very things that are promoted by the Bill of Rights in the Proposed Constitution. By accepting to sign a MoU with Kibaki and Raila they will now have an uphill task of convincing their American paymasters that the inclusion of Kadhi courts in our constitution is not the same thing as opening doors for Muslim fundamentalism in Kenya. That they can simply do by making proper interpretations of the proposed Constitution to the American paymasters.
The manner in which the Kenyan churchmen behave is like gluttonous dogs of war ready to fight anyone’s battle for some meager payment. No matter how much they are getting from the American Christian fundamentalists the amount is insignificant compared to nationalism they have decided to throw out of the window. Yet this is not the first time they are selling their souls. They did exactly the same in 2007-8 when they fanned the tribal flames of Kenya that led to the bloodbath which is still fresh in the wananchi’s minds. Paradoxically the tribal hegemonic chiefs whose tunes the Churchmen were dancing to in 2007-8 are at it again. They have joined the American Christian fundamentalists in bribing the Clergy in Kenya to oppose the Proposed Constitution.
There are many reasons for the tribalist to detest the Proposed Constitution. It threatens to deny them the opportunity to practise their xenophobic nationalism through the Majimbo system which would have licensed them to renew their ethnic cleansing exercises which they have practiced every time the country has gone through a general election. Thousands of Kenyans are still living in IDP camps because of the tribalist’s cruelty. Yet it is strongly rumoured that this time they have armed themselves to their teeth waiting for the 2012 elections.
The tribalists are up in arms against the Proposed Constitution’s attempt to stop land grabbers from continuing to own huge tracts of land when the ordinary wananchi have none. They have the audacity to impudently tell the landless people to reject the proposal that would make them stand a chance of owning some land. What angers the big sharks in the Proposed Constitution is Article 68 (1) (c) (i) which says Parliament shall enact legislation to prescribe minimum and maximum land holding acreages in respect of private land. Only people like Daniel Toroitich arap Moi and John Michuki who own very large tracts of land can oppose such a proposal. Yet they dare not give the people the true reason for their opposing the Proposed Constitution.
Moi says he opposes the Proposed Constitution because it contains many “academic issues” yet he does not name any. Michuki claims he opposes the Proposed Constitution because it allows members of the armed forces to strike. For Michuki to use that excuse to oppose the Proposed Constitution is most absurd because Article 24 (5) clearly says a provision in legislation may limit the application of the rights or fundamental freedoms to persons serving in the Kenya Defence Force or the National Police Service in the provisions concerning privacy, Freedom of Association, Assembly, demonstration, picketing and petition, labour relations, economic and social rights and the rights of arrested persons. For a man who has sat in the Kenyan Cabinet and is so respected in the country for introducing popular laws regulating matatu, his selective amnesia after reading the Proposed Constitution is simply shocking.
Likewise the churchmen’s inability to read in the Proposed Constitution’s Section 26 (4) which categorically says that abortion is not permitted is yet another case of selective amnesia. Their greatest sin is to recommend the murders of expectant mothers whose pregnancies threaten their lives. Doctors’ duties in all countries in the world are to save life. Churchmen in Kenya want them to let pregnant mothers experiencing miscarriages to be simply ignored until they die in agony.
Churchmen’s argument against Kadhi courts is equally shallow and does not appear to be original. It is certainly implanted in their minds by the American paymasters who think the word Islam is synonymous with terrorism. Why have the churchmen never raised a finger against the courts for almost half a century? Why don’t they tell their followers that the NO vote is a vote in favour of Kadhi courts because all it does is to push us back to the present constitution which recognizes the Kadhi courts?
Yet there are powerful forces against it. Composed of radical anti- Islam American Christian fundamentalists and the Kenyan tycoons who have always been protected by the current Constitution in their quest for sucking the blood of the people, the forces against the Proposed Constitutions are extremely strong; but even more formidable are the forces that back it. These are made up of the combination of the powers behind the American Government, the Kenyan Prime Minister, the Kenyan trade union, the President, the Vice President, the two Deputy Prime Ministers and the civil society.
Backed by a team of about 30 members of Parliament and the former President Daniel arap Moi, Ruto’s squad is likely to create a lot of serious obstruction; but there is no way that impediment can be beyond the means of Raila Odinga, Mwai Kibaki, William ole Ntimama, Musalia Mudavadi, Charity Ngilu, Gitobu Imanyara, Kiraitu Murungi, Kalonzo Musyoka, Mutula Kilonzo, Danson Mungatana to crush. On that list one could also add Barack Obama and Kofi Annan whose powers and influence spread beyond many boundaries.
In other words, the combination of all these people forms such a frightening political power bloc that can be stopped by almost nothing at all to achieve virtually anything they want. The passage of the Proposed Constitution through Parliament, for example, was not a mere accident. It was within the predetermined scheme of the group which foresaw no possibility of any amendment to the Proposed Constitution during the Parliamentary debating period. Hence the stage managed dramatic walkouts which achieved that goal.
Succumbing to the pressure from the American Christian fundamentalists, who are said to have poured in a lot of money into some Kenyan pockets, the Clergy in this country has made a lot of noise about the Kadhi courts and the clause on abortion. But that was before their closed door meeting with Agwambo and Mwai Kibaki. After that meeting they seem to have softened their position; and by the look of things, religious leaders are likely to back the Proposed Constitution without any amendment, hoping that that will follow after the referendum. The Clergy may even agree to sign a MoU with Kibaki and Raila though they know how slippery the two politicians are when it comes to memoranda of understanding.But it may be the only way of saving face after realizing the mood of the country is for a YES vote.
Deep inside their hearts the religious leaders are Kenyan nationalists who have been fighting for the very things that are promoted by the Bill of Rights in the Proposed Constitution. By accepting to sign a MoU with Kibaki and Raila they will now have an uphill task of convincing their American paymasters that the inclusion of Kadhi courts in our constitution is not the same thing as opening doors for Muslim fundamentalism in Kenya. That they can simply do by making proper interpretations of the proposed Constitution to the American paymasters.
The manner in which the Kenyan churchmen behave is like gluttonous dogs of war ready to fight anyone’s battle for some meager payment. No matter how much they are getting from the American Christian fundamentalists the amount is insignificant compared to nationalism they have decided to throw out of the window. Yet this is not the first time they are selling their souls. They did exactly the same in 2007-8 when they fanned the tribal flames of Kenya that led to the bloodbath which is still fresh in the wananchi’s minds. Paradoxically the tribal hegemonic chiefs whose tunes the Churchmen were dancing to in 2007-8 are at it again. They have joined the American Christian fundamentalists in bribing the Clergy in Kenya to oppose the Proposed Constitution.
There are many reasons for the tribalist to detest the Proposed Constitution. It threatens to deny them the opportunity to practise their xenophobic nationalism through the Majimbo system which would have licensed them to renew their ethnic cleansing exercises which they have practiced every time the country has gone through a general election. Thousands of Kenyans are still living in IDP camps because of the tribalist’s cruelty. Yet it is strongly rumoured that this time they have armed themselves to their teeth waiting for the 2012 elections.
The tribalists are up in arms against the Proposed Constitution’s attempt to stop land grabbers from continuing to own huge tracts of land when the ordinary wananchi have none. They have the audacity to impudently tell the landless people to reject the proposal that would make them stand a chance of owning some land. What angers the big sharks in the Proposed Constitution is Article 68 (1) (c) (i) which says Parliament shall enact legislation to prescribe minimum and maximum land holding acreages in respect of private land. Only people like Daniel Toroitich arap Moi and John Michuki who own very large tracts of land can oppose such a proposal. Yet they dare not give the people the true reason for their opposing the Proposed Constitution.
Moi says he opposes the Proposed Constitution because it contains many “academic issues” yet he does not name any. Michuki claims he opposes the Proposed Constitution because it allows members of the armed forces to strike. For Michuki to use that excuse to oppose the Proposed Constitution is most absurd because Article 24 (5) clearly says a provision in legislation may limit the application of the rights or fundamental freedoms to persons serving in the Kenya Defence Force or the National Police Service in the provisions concerning privacy, Freedom of Association, Assembly, demonstration, picketing and petition, labour relations, economic and social rights and the rights of arrested persons. For a man who has sat in the Kenyan Cabinet and is so respected in the country for introducing popular laws regulating matatu, his selective amnesia after reading the Proposed Constitution is simply shocking.
Likewise the churchmen’s inability to read in the Proposed Constitution’s Section 26 (4) which categorically says that abortion is not permitted is yet another case of selective amnesia. Their greatest sin is to recommend the murders of expectant mothers whose pregnancies threaten their lives. Doctors’ duties in all countries in the world are to save life. Churchmen in Kenya want them to let pregnant mothers experiencing miscarriages to be simply ignored until they die in agony.
Churchmen’s argument against Kadhi courts is equally shallow and does not appear to be original. It is certainly implanted in their minds by the American paymasters who think the word Islam is synonymous with terrorism. Why have the churchmen never raised a finger against the courts for almost half a century? Why don’t they tell their followers that the NO vote is a vote in favour of Kadhi courts because all it does is to push us back to the present constitution which recognizes the Kadhi courts?
Tuesday, February 16, 2010
Now Raila deserves more powers
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.
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.
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.
Saturday, January 9, 2010
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.
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.
Friday, December 25, 2009
KKK Alliance: Our greatest shame!
The year 2009 will go down in history as Kenya’s epoch of many shameful man-made disastrous calamities. Top on that list is the transgression of tribalism. Because of tribalism we have elected misfits into leadership positions, which have led to the establishment of a House of Nincompoops in place of a Parliament; because of tribalism we have killed our pregnant mothers and raped their young daughters; because of tribalism we have slaughtered hundreds of our own brothers and sisters. And now our chauvinistic leaders have come out in the open to establish an obnoxious tribal organization which they, either by design or by sheer ignorance, call the KKK alliance.
Once upon a time, as a young Managing Editor of the Daily Nation, I had the misfortune of interviewing one David Duke in New Orleans. He was then the Grand Wizard of the Ku Klux Klan, commonly referred to as the KKK. I say the "misfortune" because of the most uncivil, if not barbaric, language used by the boss of the KKK during the interview. Words that came from his mouth were so horrific that I dare not repeat them here. Suffice it to say that he unsuccessfully tried to equate me to monkeys and baboons, which he describes as black people’s closest cousins. In his mind no Black man or woman was a fully developed human being and they, therefore, did not deserve being treated as such.
Today, when I repeat that story to my students, a cold chill still runs down my spine. It was therefore my greatest shock to hear people in my own country, who consider themselves respected leaders, with titles such as the Vice President, Deputy Prime Minister and Honourable Minister, forming a political alliance with a name exactly the same as David Duke’s KKK. Kalonzo Musyoka, Uhuru Kenyatta and William Ruto would like to tell us that their KKK stands for Kikuyu, Kamba and Kalenjin. But the aims and aspirations of their KKK are not different from David Duke’s xenophobic organization. Both are just as chauvinistic. They are also both shamelessly intolerant. The American organization is racist and the Kenya one is tribalist. So what is the difference? The American KKK seeks the supremacy of the White race headed by Anglo-Saxon Protestants. The Kenyan one wants to snatch political power in Kenya and establish a dictatorship headed by tribal chiefs. Honestly, I see no difference between the two.
Kenyans should just examine the political history of the leaders of the KKK alliance to get concrete evidence why it should be thrown into the dustbin of history. As the leader of the Orange Democratic Movement – Kenya (ODM-K), Vice President Kalonzo Musyoka has not sought permission from his party executive before pulling every member into an unholy alliance with the Deputy leader of ODM, William Ruto and the Chairman of Kanu, Uhuru Kenyatta. It was only a few short years ago when Kalonzo was denouncing, in the strongest possible words, the leadership of Ruto’s ODM and Kenyatta’s Kanu. What metamorphosis has the Vice President undergone to see his 2007 strongest political enemies as his strongest partners for the 2012 elections? Alternatively what changes have taken place in Ruto or Uhuru’s leadership to attract the Kamba leader?
Kalonzo has been a loyal member of Kanu, Liberal Democratic Party, the National Rainbow Coalition, and ODM-K. All within a short period of time since he joined politics in 1983 when he unsuccessfully tried to represent the people of Kitui North in Parliament as a supporter of the dreaded one party political system in Kenya. Strictly speaking, Kalonzo Musyoka does not have a political philosophy he believes in. He changes his political colours like a chameleon. Today he is preparing Kenyans to vote for him as the next President in the 2012 elections as the leader of the KKK Alliance in the country. But will the others in his group let him take the lead? Even more important than that, will the Kamba people be prepared to be led by their noses by a man who wants to isolate them from the rest of Kenyans?
To answer the last question first, the Kamba people , who overwhelmingly backed Kalonzo in 2007 as the leader of the ODM-K should ask their leader what philosophical changes have taken place in Kanu or ODM for Kalonzo to want to cooperate with Uhuru as the Kanu Chairman or Ruto as the Deputy Leader of the ODM? They should also want to know the significance of Kikuyu, Kamba and Kalenjin political alliance against the rest of the country? Why, for example , should the Kambas in Mariakani, consider themselves closer to the Kikuyus in the Central Province and Kalenjins in the Rift Valley than the Mijikenda people of Mariakani , Miritini , Changamwe, and Mombasa which are all close next door neighbours, and have been for decades?
As to the first question , which is extremely mind boggling, it is always amazing to see people who believe in no ideology at all ganging up together to form a political alliance based on tribal loyalty, when in fact they belong to three different tribes. None of the three leaders i.e. Kalonzo, Kenyatta and Ruto has shown a remote willingness to step down for the other, for the Presidency of Kenya after Kibaki. The only thing they have in common is the perception that they have the ability of putting their entire communities in their pockets. By the look of things the trio is in for a very big surprise this time.
The majority of the new generation of voters, whose number run into millions and are scattered all over the country, have two things in common: Poverty and unemployment. They all rightly believe they are in that predicament because of the greedy leadership of the likes of Ruto, Kalonzo and Kenyatta. They believe the only salvation they have is the use of the ballot, rather than the bullet, to bring about the desired change. After all, that method has succeeded in the most powerful country where a Black man was only considered a slave, and today he is the most powerful leader introducing changes that could only be confined to a dream world.
The story of Uhuru Kenyatta is basically the same as that of Kalonzo Musyoka. Though born with a silver spoon in his mouth, his only hope of succeeding Mwai Kibaki at State House is to be accepted as the official Presidential candidate of the KKK alliance. Uhuru erroneously believes he is the undisputed leader of the Kikuyu people, who have supported his family for a long time, even before he was born. What Uhuru forgets, or is incapable of comprehending, is that the majority of the Kikuyus of today, who are the majority of young voters in Central Province, believe the rich in their community have only become so by robbing their forefathers. The majority of the rich Kikuyus are the children of home guards who killed a lot of Mau Mau in the struggle for liberation before independence. The majority of the poor among the Kikuyus today are children of the Mau Mau freedom fighters who, until today, have never seen the fruits of independence. In the next election they too see the power of the ballot bringing justice into the political scenario of the country.
Of the three KKK leaders, it is only William Ruto who has the backing of his people in the Rift Valley. But if they remember the history of how Daniel Toroitich arap Moi, who made them back his hand picked Presidential candidature of Uhuru Kenyatta in 2002, led them to be isolated by the entire country, they may not support Ruto for long . After all the Kalenjins are the quickest people in changing their minds in the entire country. If you don’t believe me, ask Raila Odinga.
Once upon a time, as a young Managing Editor of the Daily Nation, I had the misfortune of interviewing one David Duke in New Orleans. He was then the Grand Wizard of the Ku Klux Klan, commonly referred to as the KKK. I say the "misfortune" because of the most uncivil, if not barbaric, language used by the boss of the KKK during the interview. Words that came from his mouth were so horrific that I dare not repeat them here. Suffice it to say that he unsuccessfully tried to equate me to monkeys and baboons, which he describes as black people’s closest cousins. In his mind no Black man or woman was a fully developed human being and they, therefore, did not deserve being treated as such.
Today, when I repeat that story to my students, a cold chill still runs down my spine. It was therefore my greatest shock to hear people in my own country, who consider themselves respected leaders, with titles such as the Vice President, Deputy Prime Minister and Honourable Minister, forming a political alliance with a name exactly the same as David Duke’s KKK. Kalonzo Musyoka, Uhuru Kenyatta and William Ruto would like to tell us that their KKK stands for Kikuyu, Kamba and Kalenjin. But the aims and aspirations of their KKK are not different from David Duke’s xenophobic organization. Both are just as chauvinistic. They are also both shamelessly intolerant. The American organization is racist and the Kenya one is tribalist. So what is the difference? The American KKK seeks the supremacy of the White race headed by Anglo-Saxon Protestants. The Kenyan one wants to snatch political power in Kenya and establish a dictatorship headed by tribal chiefs. Honestly, I see no difference between the two.
Kenyans should just examine the political history of the leaders of the KKK alliance to get concrete evidence why it should be thrown into the dustbin of history. As the leader of the Orange Democratic Movement – Kenya (ODM-K), Vice President Kalonzo Musyoka has not sought permission from his party executive before pulling every member into an unholy alliance with the Deputy leader of ODM, William Ruto and the Chairman of Kanu, Uhuru Kenyatta. It was only a few short years ago when Kalonzo was denouncing, in the strongest possible words, the leadership of Ruto’s ODM and Kenyatta’s Kanu. What metamorphosis has the Vice President undergone to see his 2007 strongest political enemies as his strongest partners for the 2012 elections? Alternatively what changes have taken place in Ruto or Uhuru’s leadership to attract the Kamba leader?
Kalonzo has been a loyal member of Kanu, Liberal Democratic Party, the National Rainbow Coalition, and ODM-K. All within a short period of time since he joined politics in 1983 when he unsuccessfully tried to represent the people of Kitui North in Parliament as a supporter of the dreaded one party political system in Kenya. Strictly speaking, Kalonzo Musyoka does not have a political philosophy he believes in. He changes his political colours like a chameleon. Today he is preparing Kenyans to vote for him as the next President in the 2012 elections as the leader of the KKK Alliance in the country. But will the others in his group let him take the lead? Even more important than that, will the Kamba people be prepared to be led by their noses by a man who wants to isolate them from the rest of Kenyans?
To answer the last question first, the Kamba people , who overwhelmingly backed Kalonzo in 2007 as the leader of the ODM-K should ask their leader what philosophical changes have taken place in Kanu or ODM for Kalonzo to want to cooperate with Uhuru as the Kanu Chairman or Ruto as the Deputy Leader of the ODM? They should also want to know the significance of Kikuyu, Kamba and Kalenjin political alliance against the rest of the country? Why, for example , should the Kambas in Mariakani, consider themselves closer to the Kikuyus in the Central Province and Kalenjins in the Rift Valley than the Mijikenda people of Mariakani , Miritini , Changamwe, and Mombasa which are all close next door neighbours, and have been for decades?
As to the first question , which is extremely mind boggling, it is always amazing to see people who believe in no ideology at all ganging up together to form a political alliance based on tribal loyalty, when in fact they belong to three different tribes. None of the three leaders i.e. Kalonzo, Kenyatta and Ruto has shown a remote willingness to step down for the other, for the Presidency of Kenya after Kibaki. The only thing they have in common is the perception that they have the ability of putting their entire communities in their pockets. By the look of things the trio is in for a very big surprise this time.
The majority of the new generation of voters, whose number run into millions and are scattered all over the country, have two things in common: Poverty and unemployment. They all rightly believe they are in that predicament because of the greedy leadership of the likes of Ruto, Kalonzo and Kenyatta. They believe the only salvation they have is the use of the ballot, rather than the bullet, to bring about the desired change. After all, that method has succeeded in the most powerful country where a Black man was only considered a slave, and today he is the most powerful leader introducing changes that could only be confined to a dream world.
The story of Uhuru Kenyatta is basically the same as that of Kalonzo Musyoka. Though born with a silver spoon in his mouth, his only hope of succeeding Mwai Kibaki at State House is to be accepted as the official Presidential candidate of the KKK alliance. Uhuru erroneously believes he is the undisputed leader of the Kikuyu people, who have supported his family for a long time, even before he was born. What Uhuru forgets, or is incapable of comprehending, is that the majority of the Kikuyus of today, who are the majority of young voters in Central Province, believe the rich in their community have only become so by robbing their forefathers. The majority of the rich Kikuyus are the children of home guards who killed a lot of Mau Mau in the struggle for liberation before independence. The majority of the poor among the Kikuyus today are children of the Mau Mau freedom fighters who, until today, have never seen the fruits of independence. In the next election they too see the power of the ballot bringing justice into the political scenario of the country.
Of the three KKK leaders, it is only William Ruto who has the backing of his people in the Rift Valley. But if they remember the history of how Daniel Toroitich arap Moi, who made them back his hand picked Presidential candidature of Uhuru Kenyatta in 2002, led them to be isolated by the entire country, they may not support Ruto for long . After all the Kalenjins are the quickest people in changing their minds in the entire country. If you don’t believe me, ask Raila Odinga.
Wednesday, December 9, 2009
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.
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.
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