LAW CHANGE DEBATE

Referendum won't make Kenya better, voters will

Kenyans must arise and defeat this system of patronage and parochialism, exhibited by that very elite who are espousing different political systems

In Summary

• From the foregoing, the BBI and the Punguza Mizigo initiatives should not only be constitutional but also legal, policy, institutional and administrative recommendations.

• To be forthright, Kenyans elect horrible rather than honourable people, and for those elected, they appoint into office very bad specimens.

A woman reads a copy of the draft constitution
A woman reads a copy of the draft constitution
Image: FILE

There is too much talk about leadership and political systems in Kenya and part of the debate is whether we need a presidential or parliamentary system.

I this regard, there is talk about changing the Constitution to fit either of these systems, which include Building Bridges Initiative, Punguza Mizigo Bill and others that did not/have not gained much currency.

First, let us inform, educate and elucidate the differences between the two. This commentary is informed by the world order that we live in, including what has been espoused in the past, the present, and what we postulated for the future under the Constitution.

 

Second, let us have candid examples of countries that have adopted either of these systems, including military dictatorships, which point out that systems do not create leaders but people do — voters or the electorate.

Third, allow me to make conclusions about the Kenyan problem within the prism of the prevailing political culture, meaning the beliefs, opinions and attitudes of the people towards the political systems.                                                                                                

Article 1 of the Constitution bestows the sovereign power upon the people, directly or through representation.

It is dumbfounding that  Kenyans are being subjected to discussions and debate about some individuals, who believe we should change the Constitution. 

 Our history, between 1963 and 1982, is tainted with 27 frivolous and whimsical amendments, including some of those being floated now.

Chapter Six created an avenue where a) the Independent Electoral and Boundaries Commission; and b), the Ethics and Anti-Corruption Commission, working in unity, would shield Kenyans from characters running the show about constitutional amendments. In 2017, the EACC blacklisted over 100 persons but the electoral cleared them to run for office. What irony!

Second, Kenyans were mesmerised by some people who danced on the graves of those who fought, bled or died in the realisation of this Constitution and also those who were displaced, dispossessed and killed in the 2007-08 post-election violence. Today, some are choosing to forget that was the constitutional moment to many Kenyans.

The National Assembly, the Senate and the national and counties’ executives, including various state officers, have not conducted an audit of what the Constitution costs, or even asked what Kenyans need.  Kenya's most expensive problem is not the Constitution, but corruption.

 

However, on questions of the referendum, a requisite and mandatory peoples’ vote is required. All the Articles that require a referendum are elaborated in Article 255(1): They include the sovereignty of the people, national principles and values, office terms of the presidency, the Bill of Rights, devolution, and the Chapter itself, which is protected from weird amendments that have occurred in the past.

FRAMING THE EPISODE 

From the foregoing, the BBI and the Punguza Mizigo initiatives should not only be constitutional but also legal, policy, institutional and administrative recommendations.

They should reflect what Kenyans said in either constitutional review processes and what the framers of the Constitution went through and documented. Be that as it may, it would seem nearly impossible for Kenya to realise that dream based on what follows below. 

Having read the Punguza Mizigo Bill, the issues raised are pertinent. However, they are too many to solicit a referendum question. A referendum is based on one or two simple questions, not a mammoth of issues.

Moreover, the drafters, including the leaders and their supporters, who have been quoted, do not have a say on the way in which either the county assemblies or Kenyans would vote. It is a politically led roulette game, which we could postulate, is suicidal.

Historically, Kenyans have been subjected to either what was termed as minimum or maximum reforms. The latter meaning an overhaul of the constitutional arrangement, whilst the former means proposing various amendments to either the former Constitution or legislation arising from the same.

The second matter pertains to public participation as a means of enabling the initiatives, which BBI has done very well, unlike the Punguza Mizigo campaign. It is interesting that Kenyans are being asked by the above initiatives, about what they would want to realise, but none of them about their responsibilities, those that own the nation and sovereign power.

WE THE PEOPLE

Kenyans ushered a new constitutional order on August 4, 2010, and agreed on the basic norms and values about the rules that will guide us as the Preamble summarises.

The power of the people is indisputable. However, it means nothing until or unless it is exercised. Leaders are framed within this context. Take a look at America with its presidential system: There is a huge difference between former President Barack Obama and the incumbent, Donald Trump. The latter is a fool whilst the former is a brilliant man who brought some semblance of order. Both have served within the presidential system.

Second, take a look at the UK. There are two distinguishable leaders who served as Prime Minister — Margaret Thatcher and David Cameron. They served in a parliamentary system but achieved varying results.

Thatcher was great, Cameron was a whimsical dude who led the UK into a non-ending “Brexit” and resigned out of frustration. The successor, Theresa May, also quit. Now, no one knows in the not so Great Britain, the future of “Brexit”, even the current Prime Minister Boris Johnson.

In India, Indonesia, Caribbean Islands’ countries such as Jamaica and Haiti and in the East led by Japan, where the latter parliamentary systems of governments have not lasted more than five years if at all, the countries’ have witnessed the chaos.

Not because of the system of leadership or governance, but because of the individuals or the electorate.

Further, when one thinks of Malaysia, Taiwan, Hong’ Kong’ or any other Asian country, the story is the same. Just recall the history of Malaysia under Tun Abdul Razak or Singapore under Lee Kuan Yew.

These countries never grew or underdeveloped because of parliamentary, presidential or military dictatorships: It is because the leadership was committed about the country and its people.

The debate is about whether Kenyans need or want a presidential or parliamentary system for better governance. Kenyans, I have tried to understand what this debate is about, but the odds are clear.

There is too much talk about systems of governance, by even dare I say fools of political systems in the world, who do not have a fair clue of how this world and the countries are governed.

It is the assumption of this commentary that these fellows do not understand either the systems or the structures of governance and leadership.

In conclusion, Kenyans must arise and defeat this system of patronage and parochialism, exhibited by that very elite who are espousing different political systems – whether parliamentary or presidential systems — which they do not even comprehend of.

To be forthright, Kenyans elect horrible rather than honourable people, and for those elected, they appoint into office very bad specimens. Kenyans need bold steps, thorough resolve and clear will to implement the Constitution as it is, since without implementing the Constitution, troubles are laid bare today and in the future.

We do not need any other solution: Not a referendum or a constitutional amendment to change the leaders who are elected or appointed. We need a reflection on who we are as Kenyans.

The Author is a political scientist, who is a commentator on general governance issues and also an expert on human rights and constitutional history.


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