Close

LAW CHANGE DEBATE

BBI gives Wanjiku opportunity to reflect on constitutional role

What explains the yearning by the elite/ruling class for a review of the Constitution?

In Summary

• Inclusivity should cover political and economic equitable sharing of national prosperity.

• Political competition continues to be a do or die affair.

ODM leader Raila Odinga with Building Bridges chair Senator Yusuf Haji and Adams Oloo - a member of the team, during a briefing at Capitol Hill, Nairobi, August 1, 2018.
ODM leader Raila Odinga with Building Bridges chair Senator Yusuf Haji and Adams Oloo - a member of the team, during a briefing at Capitol Hill, Nairobi, August 1, 2018.
Image: FILE

Kenya’s Constitution has been hailed as one of the most progressive in the world.

It had the objective of promoting good governance, and it was expected that following its adoption, the country would identify and cultivate ethos to guide the management of our public affairs. Article 10 is very clear in this regard.  

If so, what then explains the current yearning by the elite/ruling class for a review, hardly nine years down the line? One would have expected, the underprivileged and suffering proverbial Wanjiku to be on the forefront, taking charge to change and the law as will be necessary to improve her dilapidated social, economic, and political status.

While the majority in the ruling class comfortably live in ivory towers and enjoy unlimited trappings of power, they appear not to appreciate and or understand the economic and social suffering Wanjiku is enduring.    

The brave and statesmanship action by President Uhuru Kenyatta and opposition leader Raila  Odinga which led to the handshake,  and thereafter to the Building Bridges Initiative,  should be lauded by all well-meaning Kenyans. This will hopefully give Wanjiku another opportunity to reflect on the meaning, and her role as provided for under Article 1(2) of the Constitution, given the evidence that those she put her trust in have to a large extent betrayed that trust.

HIGHLIGHTED  ISSUES NOT NEW

There are two common denominators that run through the nine Building the Bridges Initiative issues under discussion — greed and impunity.

Currently, these vices are perfectly practised by the majority of the elite, and those in senior public service positions. It is worth asking why recommendations made by the past Commissions have continued to gather dust, while Wanjiku continues to languish in poverty. Among the reports that I believe would have helped the country to move forward include the 2003 Ndung'u report formed to examine the sensitive land issues and the Truth, Justice and Reconciliation Commission looked into past injustices.

INCLUSIVITY

Inclusivity should cover political and economic equitable sharing of national prosperity. Our politics has allowed a sad situation where winning political parties/tribes tend to take all at the exclusion of opponents. Consequently, political competition continues to be a do or die affair.

In regard to the top Executive positions, I wish to suggest the following:

That we have a one titular President without a deputy.

Two, have a first Prime Minister to be appointed by the ruling Party and the second Prime Minister to be appointed by the opposition.

Ministerial posts to be shared 60 per cent for the ruling party and 40 per cent for the opposition.

However, the Office of the President, ministries of Finance, Defence, and Foreign Affairs, should be a preserve of the ruling party. All appointments should demonstrate ethnic, geographic, and gender diversity.

 As regards to women inclusion, the electoral law should be changed to require that men candidates are accepted as elected only when they get 50 per cent plus one, of the counted votes as is the case with the President.

 All other contested seats with candidates scoring below 50 per cent should initially be considered losers except for women, who, for affirmative action purposes, should be accepted with 35 per cent and above.  The IEBC will then examine the percentage voter score in every county and establish the lowest percentage voter candidate in each. These positions should progressively be given to women starting from the lowest until the one-third gender quota is realised.   

DIVISIVE ELECTIONS.

Elections are processes and not events.

A level playing ground, strict observation of the law by all stakeholders are pre-requisites for free, fair, and credible elections.

 

We have a Registrar of Political Parties who is expected to enforce discipline in political parties, as provided for in the Act of Parliament.

However, for some unknown reason, the office has been deliberately kept weak and ineffective. The Registrar has been starved of resources both manpower and financial. All these have undermined the Registrar’s position leaving room for serious indiscipline in political parties. The mushrooming briefcase political parties with almost identical constitutions have muddied the field even further.

The answer to our politics include enforcing the Electoral Offences Act and other relevant rules and regulations in such a way that no one — voter, candidate, the IEBC, government or agent —will dare commit an electoral offence

Two, appoint a strong, credible personality with a spine to impartially withstand political pressure always associated with the political hurricane.

The Constitution requires the President to win with 50 per cent plus one. To be seen to be democratic, and demonstrate equity in applying our laws, people vying for electoral positions should be required to have overall majority votes of voters in their respective areas. As of now, the majority of our leaders represent minority voters in their areas and in total, Kenya is ruled by a minority.

Elected leaders should be limited to serve a maximum of two terms. Additionally, to demonstrate seriousness and credibility of candidates, Senate candidates and women reps should be required to raise at least 10 per cent of the voters in 50 per cent of the Constituencies of the County, MPs 10 per cent of the voters in 50 per cent of the wards, and MCA’s 10 per cent of the voters in 50 per cent of the sub-locations or equivalent.

The Senate should be a thinner, Superior Upper House, with veto powers as necessary. Finally, reduce the number of elected leaders at all levels. The country is over-represented, a clear case of too many cooks spoiling the broth.

In regard to the appointment of commissioners, and, bearing in mind that unlike other commissions, election work is pure politics, I recommend the IPPG method where the Political Parties will nominate Commissioners in accordance with their Parliamentary strength.

The President in consultation with the opposition should be allowed to appoint the chairman. Note that the IPPG experiment worked perfectly well in 1997, 2002, and during the 2005 referendum.  All other experiments have failed.

CORRUPTION

A lot has been said about graft and all that remains is to declare it a national disaster.

There is need to strengthen anti-graft institutions such as the Judiciary. If the adage ‘justice delayed is justice denied’ were to apply to Kenya, then one would be justified to conclude that we have no justice in Kenya. Cases are routinely delayed, partially because the Judiciary is lamentably and deliberately under-resourced in terms of finance and personnel. Its independence is threatened and seriously compromised.

The DPP and the DCI offices are doing a good job and need more competent personnel and all our support. There is a need for enhancing professionalism and competence in the departments. EACC has also woken up.

RECOMMENDATIONS

One, review the 1971 Ndegwa Report on Civil Servants Salaries with a view to totally disallowing public servants from engaging in private business. Civil servants should be given six months within which they should decide whether to serve in the Public Service or engage in private business.

Two, consolidate public workers salaries and abolish amorphous allowances such as sitting, responsibility allowance, etc.

Three, enact tough laws to make corruption a no go zone.

Four, institutions are a reflection of the persons who man them. If it is Kenyans’ desire to move forward, merit should be the major consideration when appointing people to take charge. Currently, it is tribal, party loyalty and personal relationship that influence consideration in getting a public appointment. It is no wonder that instead of parastatals  generating revenue for the government, they  largely depend on state subsidies

Former ECK commissioner

 [email protected]