Stop This Subversion Of The Constitution
Parliamentarians are back to their treacherous ways again. This week, they are busy hacking away the law they passed less than a year ago with gusto. They are implanting self-serving amendments to insulate themselves against fair competition and the general will of the Kenyan people expressed in the Constitution we passed only the other day.
The proposed amendments to the Elections Act and the Political Parties Act are anachronistic and subversive. They aim to steal the citizen’s democratic right to choice and fair elections. Through the Miscellaneous Statute Amendments Bill 2012, the MPs are seeking to defeat the will of the people and continue reign over them with impunity.
Yet the spirit of the constitution is very clear. It says in its preamble that the people of Kenya authored the constitution cognizant of the the “aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law.”
How, we ask, are these aspirations, principles and values served by amendments that seek to install in public office individuals who have been rejected by voters in a fair and democratic election? Are some citizens more equal than others?
The Elections Act reinstates losers in a Parliamentary and Senatorial election by giving them a lifeline through the party list. The Attorney-General’s amendment introduced to section 34(9) by a legal notice, while the same was pending in Parliament, extends that mischief to include unsuccessful candidates for president and deputy president. It allows them to contest simultaneously for any of the other elective positions —MP, Senator, Governor, County Representative.
The tragedy of this amendment is that it is not only needless but financially costly. It means voters in the constituencies where presidential candidates and deputies come from (should they opt to so do) will be electing their candidates knowing they may have to be called back for a repeat election within two months. That is tardy. Second, and more significantly, repeating the election is waste of resources for the country. While the scenario can be cured by providing that the runners-up in the constituencies that will elect the president and deputy be declared duly elected, it is still unreasonable and fraudulent. Such a law is offensive to the democratic ethos because a loser may be declared winner but enjoy very little popular support.
Allowing presidential candidates and their running mates to contest lower seats is also functionally offensive to the principle of separation of powers. The new constitution was deliberately crafted to cure the ambiguities and ambivalence of our previous hybrid system of government where the Executive had one foot in the Legislature (by dint of the President being an elected MP and Cabinet was composed of Members of Parliament. The separation of powers envisaged in the new constitution must count for something in practice. It must be seen to be practice right down to the elections and free from the whims of political hyenas.
It is ironic that a country that aspires to be the best should lower the bar for political leadership to such elementary levels as post secondary certificate. Yet, all around, in virtually every village, universities are sprouting to offer degrees to those who would want to better their academic excellence. The high standards set by the same lawmakers for holders of other public positions and the judicial arm of government must apply to the political leadership as well. The executive and legislature have now designated themselves as the destination for the mediocre. Attorney General Prof Githu Muigai, lawyer Danson Mungatata and Chris Okemo owe the public an explanation for their low rating of the political class.
From party hopping to awarding themselves ever increasing perks, the propensity for self-aggrandizement of our MPs is world renown. Unless the selfishness of our political leadership are nipped in the bud by a combination of civic and judicial remedies, the last days of this Parliament will bequeath to the country the worst of its legislative incompetence. The MPs will stop at nothing in rewarding themselves and guarding against loss of power. But at the end of the day, Kenyans will have the opportunity to make the ultimate amendment of the whole House by sending them all packing on polling day. That date ought to come faster.
Makali is the director of The Media Institute. firstname.lastname@example.org