Thursday, January 21, 2010

On Constitutional Review, Beware of Politicians by Tom Kagwe

Changing faces, changing spaces and changing allegiances but permanent interests define the Kenyan politicians in the search for a new constitution. We have been here before. Similar to 2005, the same group of political cabals has once again resurrected. As we expected, daggers have been drawn; not with the object of ensuring we have a new order in the next 3 months, but to once again scuttle the review process. Political brinkmanship is in full gear and glare. Kenyans of good will must wake up and seize the moment. Politicians have no intellectual, moral, legal, or legitimate authority to lead the search for a democratic constitution. Katiba ni Sasa!

We hear that they prefer either a ‘presidential’ or ‘parliamentary’ system of government. Please do not be fooled! They are only hiding behind big concepts of political science, which many have no idea what they mean. They have no idea how many variations of either system exist in the world. They are also not ready to propose which model fits this country.

Throwing words around
These politicians have no intellectual authority to speak. Germany is parliamentary, but ministers are drawn outside the Bundestag. United Kingdom is parliamentary, but ministers are drawn form the House of Commons. United States is a presidential system, but the president is elected by an Electoral College. This College determines who becomes president: not the popular vote. The US Secretaries of State are drawn from outside the Congress. South Africa can be said to be also a semi-presidential system, but the president is elected by the Electoral College: the Parliament of South Africa. Have you heard this political class talking this way? They cannot. They just say no one should be elected through a ‘back door’. Others are saying that anyone exercising power must be elected directly by the people! Where are the examples? They are simply throwing words around, to confuse Kenyans as usual. Therefore, let us stand tall and say Katiba ni Sasa!

We also hear that they want a ‘yes-yes’ referendum. The National Civil Society Congress is bewildered beyond reason. In July 2008 we met some of these politicians and we urged them to write a law that can support this type of referendum. We predicted that the system of government would bring disagreements, but they ignored us. Today, they are the ‘merchants’ of an idea that they do not fully comprehend and whose time, honestly, has passed. To have such a referendum, we need to amend the Constitution of Kenya Review Act (2008). Can they? We should really doubt their intentions. Be very wary of anyone who wants to change the law at this juncture. Mark you: they may also want to amend other things like the deadlines, which can then jeopardize the review process by bringing it closer to the electioneering period. Do not be fooled!

No moral authority
Exactly two years ago, Kenyans were butchering each other. And the ‘politicians are behaving as if nothing happened’ to paraphrase Dr. Kofi Annan. What actually is their moral standing when blood was spilled in their name; Internally Displaced Persons are still languishing in plastic tents; and, the victims of post-election violence are still waiting for justice? The search for a new constitutional order is not to help Kenyans go to heaven, but to help us avoid hell: hell facing us today and perhaps of the future. Having read the Revised Harmonized Draft Constitution, it is not perfect. But we should not expect a perfect document. But that Draft is capable of being the law of the land, and to give a sense of new ethos, rules, principles and values as a society. Why do these politicians concentrate on just one Chapter on executive power? Simply because they never pursue national values, goals and morals, but only raw power! Katiba ni Sasa!

Looking at the Review Act, and read together with the Constitution of Kenya (as amended to accommodate the review process), politicians do not have the legal authority to dictate what should or should not be in the draft. The Review Act gives them such power, but the Constitution does not. Since the Constitution is superior to any other law, then let us wake up and seize this moment! Yes, they have a stake in the process, but their stake is not longer, bigger, or more important than all of us. That is why even they do not have legitimate authority. The coalition was formed as a ‘ceasefire government’. Not an ‘elected government’. No one can purport to state they represent the interest of the Kenyan people per se. We urge them to step down from their high horses. Kenyans of goodwill: wake up and state Katiba ni Sasa!
Tom Kagwe, J. P.
Ag. Programmes Coordinator / Dep. Ex. Director
Opposite Valley Arcade, Gitanga Road,
P.O Box 41079, 00100 GPO, Nairobi, Kenya.
Tel. +254-020-3874998/9 3876065/6
Fax. +254-020-3874997

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