from Judy Miriga

From: Cyprian O NYAMWAMU

We have considered the cabinet’s reasons and objectives for attempting a constitutional amendment to 1) change the date from the 2nd Tuesday of August to the 3rd Monday of December; 2) to provide for a formula to meet the 2/3 gender threshold that the constitution provides for in Article 27 (8), Article 81, 97 and in other areas; 3) we have also considered the national acrimony surrounding the work of the IEBC commissioners’ selection panel.

On the first matter we have ruled as follows:

The amendment to the constitution to change the dates from August to December in effect gives the President, the Prime Minister and the MPs a new term which is unconstitutional and even this was to be done constitutionally, a referendum will have to be carried out after this proposal has been lodged with the Constitutional implementation commission in good time. Before a referendum is carried out, three months will be required before the vote is taken. This amendment is dangerous and divisive as much as it is corrosive to the integrity and spirit of our constitution. The sovereignty of the people and the supremacy of the constitution must be treated with the Majesty they are constructed with.

The reason provided by the cabinet: that Kenya lacks preparedness for the elections due to a short period of time between now and August next year is speculative and self serving. There have been deliberate maneuvers by the executive and parliament aimed at delayed the rolling out of the election road map. The IEBC Act took very long to get the President’s assent. All the delay tactics have been obvious. Kenyans can not grant politicians their devious wish. We therefore declare this reasoning unfortunate and reject the change of date. It is hereby directed that elections be held as is stated in the constitution, August 14, 2012. What has to be done can and must be done to have the elections on this date. Yes, we can delineate the boundaries, register voters, dissolve parliament, nominate candidates and hold elections with six months leave alone the eleven (11) months available to us as a nation till August 2012.

The second reason that has been provided being that the budget cycle shall be disrupted is administrative and the simple answer we offer is that the cabinet advised by the ministry of finance must find a way of aligning their administrative challenges to fit into the constitutional provisions. The constitution of Kenya was written by Kenyans who were high on alcohol so that we now behave like the alcohol is gone and we have woken up to some contingent reality that requires alteration. The date must stay as is and Kenyans have directed that their servants do the needful.

The public court remembers that the reasons why August was chosen and not any other month was because December was found to be very expensive socially because it was disruptive to the family development interests as well as the problem the weather adversities of December pose which make very many places inaccessible and perilous. These reasons are valid now as they were when we voted in the referendum to accept the constitution.

On the matter of the 2/3 gender imperative, we find the proposals attractive but problematic. First of all Kenyans specifically asked cabinet ( through their memorandum to the cabinet sub committee on gender thresholds) to demand that political parties develop party lists of women who shall become MPs once the elections are conducted. The cabinet proposal is that elections be held then parties be asked to nominate women in proportion to party strength in parliament to fill the required number to meet the 2/3 threshold. Cabinet is setting up women. The idea was to ensure that party lists are prepared in advance of the elections so that Kenyans vote for parties which provide a strong list of women MPs. MPs from party lists are actually elected alongside other MPs and they are therefore not nominated. There is a whole ocean of a difference between nominated and elected women MPs.

Let us also explain as follows: there are persuasive formulas that can and should be used to ensure that the 2/3 gender threshold is met without amending the constitution. Amending the constitution as proposed by cabinet will increase National Assembly MPs to beyond 400 from the current 222 which is problematic. One of the formulas which found favour with the IIEC was the 25% formula where a quarter of the constituency would be gazzeted by the IEBC as gender constituencies. Using this formula, within 20 years (or four elections) all the 290 constituencies shall have each elected a woman MP (elected is the key word here) and the affirmative action provision shall be retired unless men face the danger of being less than 1/3 of the national assembly. This formula was opposed out of fear and out of arguments of its unconstitutionality which were both false arguments. The cabinet should embrace this formulae and provide for it so that we meet the 2/3 threshold on gender without amending the constitution.

The public court is concerned that political parties that have lofty gender policy statements in their manifestos like PNU, ODM, Safina, Narc Kenya have allowed their MPs in parliament to vote or act against party policies on gender. Yet these parties are funded by the taxes of Kenyans including taxes contributed by women as citizens of Kenya . The registrar of political parties needs to wake up and hold these parties accountable. The CMD-Kenya should institute a strong motion with the Registrar to move her to act in the interest of the tax payers of Kenya .

To the last matter as regards the selection of the IEBC commissioners. The public court is disgusted by the most irresponsible utterances by the Vice President, the Deputy Prime Minister Uhuru Kenyatta, Eldoret North MP William Ruto among a host of public officials who have made statements against the work In progress that the Selection Panel headed by Dr. Ekuru Aukot is currently undertaking. These officials are basically telling the President and the Prime Minister that they do not have confidence in the Panel that the Principals and the National Assembly constituted.

This is how we then propose that this matter be resolved: Since these officials clearly have people in mind who they think must be in the IEBC shortlist for it to be fair, they should name them publicly. Once they name them, the Panel should be disbanded and Kalonzo should be made chair of the new selection panel with Uhuru and Ruto as his deputies so that they can constitute a panel that they are pleased with which we Kenyans shall then reject and ask Dr. Aukot and his team to finalize their work and forward the names to the self same MPs to consider in Parliament.

In short, these public officials are loose canons who simply can not wait for their turn. When the vice President says that they can not accept the 2012 election to be rigged in 2011, he is simply saying that in fact the 2007 election was rigged by Kivuitu’s ECK in favour of Mr. Mwai Kibaki because 21 out of 21 commissioners in that commission were Kibaki’s cronies at the ECK. But what shocks more is that Mr. Musyoka does not think that it is the people of Kenya who will vote in 2012 and not the commissioners. We Kenyans are never going to let a commission to rig an election in this country. We shall deliver all the commissioners to the Judiciary and have all of them jailed for good. This is the 2nd republic and the rule of law shall be the hall mark of all governance process include the electoral process in Kenya . The incitement by Mr. Musyoka must not be left to go unchecked. The Public court therefore calls upon the National Cohesion and Integration commission to immediately issue order in writing to the Vice President to caution him.

For the Public Court ,

Mtumishi Cyprian Orina Nyamwamu
Chief Executive Officer
The National Convention Executive Council