Kenya On the Brink; Harmonized Constitution Draft a Basket case of Failure and Governance Quandary!

David ochwangi

Mon, Nov 23, 2009 at 11:12 PM

Wise men say, “Only fools rush in where angels dare tread”; we have been down this road several times before.  We need to tread with caution on this draft and avoid the same pitfalls that we have been misled to sign on to like lost sheep jumping off a cliff time and time again as recent as 2002, 2005, 2007 and 2008. As important as it is that we get a new constitution as some want to, it is equally imperative that we get it RIGHT timelines notwithstanding! This so called “Harmonized Draft Constitution” compounds the problems in Kenya, not solve them.  Just two weeks ago, almost immediately after recess and when parliament should have been debating the people’s business e.g. the Imanyara Bill to set up a local tribunal to punish PEV perpetrators, Ministers and their Assistants instead went on an expensive retreat in Mombasa on the taxpayers’ tab to “BOND”! And show unity of purpose in supporting this fatally flawed so called the “Harmonized Draft Constitution”. These are the same people who unanimously and without aforethought voted for this confused embarrassing so called coalition government, a permanent stalemate and paralysis; a bloated cabinet paid for on the backs of the poorest of the poor while the nation starves and IDPs still languish in camps; stalled delivery of services to Kenyans; the same bunch that refuses to pay taxes on their hefty salaries; the same bunch that approved one quarter Billion Shillings to renovate the PRIVATE residence of the PM which will NOT benefit tax payers one iota and continues to fund other excessive luxuries of the President, vice president, speaker, on and on and on;  so can we really trust parliament to do any better now beyond what they are good at,  self preservation?  The only unmistakable variable missing from the” BONDING” session was, as usual, “WE THE PEOPLE”.  This was nothing more than yet another “Boardroom Gentlemen’s meeting to come up with an agreement or MOU” to guarantee perpetual hold on power.

If there was ever a time this country needed men and women of substance to stand up for Kenya’s very survival, it is now! Just as we have fought so hard and still continue to end impunity in Kenya, this is another fight we cannot ignore and allow a few conceited self righteous individuals write our country’s next chapter; we must be on the driver seat this time around, period. Left to their devices, this bunch will most certainly plunge the country into the abyss, remember the international community has had to babysit Kenya’s leadership for two years straight now!  We have been on this journey long enough and been bamboozled many a time to know things are terribly amiss. As the rubber hits the asphalt and the once unknown unravels; as the witch’s brew has fermented long enough and is now being served, we must remain vigilant, one more time. The country would be taking a step backward to primitivism if we sit idly and just watch and Just as before, we’ll be left with an even bigger mess to clean up for way too long after these henchmen exit the scene. For decades now the same faces have been at the driver’s seat in Kenya’s government and the evidence of piles upon piles of ROT speaks for itself; enough is enough!

Constitutional review:

I am livid that this is what the “EXPERTS” came up with, seriously! Not so much for its verbosity, redundancy and contradictions but because this is a reactionary half baked document based on fear of what might happen if one side doesn’t get what it wants instead of reason and principle; the so called “experts” have acknowledged as much. This document rewards further the 2007 PEV inciters and is not objective at all. It effectively makes permanent TWO centers of government by splitting hairs about the definitions of the so called “State” and “Government”! It is a clear attempt by the politicians to carve out yet another piece of the pie for themselves so they remain relevant for years to come; there is no such a thing as “State” and “Government” separation. The government runs the state, it is the practice world over, and we have had the arrangement for 46 years now, what happened, a sudden epiphany to the “experts”?  A constitution is supposed to be a purposeful document for posterity; a NEUTRAL legal document emphasizing rule of law and based on principle not a temporary fix of past or current flare-ups; that only defers cries for new constitutions when new flares surface down the road. This document is based on fear, intimidation and appeasement. It does not even adequately address incitement to violence by leaders dissatisfied with election outcomes such as stiff penalties and barring them permanently from ever holding public or elective office as a deterrent to violence and encourage rule of law. This draft further dramatically expands government and bureaucracy at astronomical costs, adding layers upon layers of red tape on an already rotten system, creates more unnecessary turf wars, increase deficiencies in service delivery instead of efficiency. What is an expert?

Expert; Definition

An expert is someone widely recognized as a reliable source of technique or skill whose faculty for judging or deciding rightly, justly, or wisely is accorded authority and status by their peers or the public in a specific well-distinguished domain. An expert, more generally, is a person with extensive knowledge or ability based on research, experience, or occupation and in a particular area of study.(WIKIPEDIA)

Please convince me that the so called “Harmonized” Draft is the work of “EXPERTS”.

What a sham and waste of national resources? ABSOLUTE NONSENSE; Most of what is contained in the draft  either already exists  in the current constitution or in the last Waki Draft which was defeated in the 2005 referendum; Was tax payer money spent on this? I mean seriously, were these “EXPERTS” paid for this? If you thought the current confusion and ineptitude in governance in Kenya is bad, God forbid this incredibly flawed so called “Harmonized Constitutional Draft” ever sees light of day in Kenya! Who “harmonized” this thing? When?  It is an assured train wreck; the “experts” are proposing to replace all the gains we have made in our democracy with a return to a dictatorial oligarchy which we have made every effort to erase since independence, an absolute nightmare which will see many innocent lives lost unnecessarily. They are proposing to not only make permanent the current flawed arrangement which has extremely burdened taxpayers and also paralyzed government service delivery but also expand it. WHY on God’s green earth would Kenya want to extend this confusion one additional day? WHY?! It is a blatant attempt by these folks to divvy up the electoral spoils through radical and exponential expansion of government and to ratify the 2002 MEMORANDUM of UNDERSTANDING (MOU) at the expense of all of us. Who will pay for all this expansion? This bunch is just taking us for one major FINAL ride of their self preservation. This piece of draft is fatally flawed and to think we spent Millions of Shillings of tax payer funds to produce it is just appalling! Twice now, with career politicians devoid of true issues affecting the common man; they are attempting to short circuit the coexistence of Kenyans!  I knew, like many of us did, that the “experts” may not necessarily have all the answers but we didn’t expect it to be this BAD!

The Executive:

First off, and to the “experts” credit for properly recognizing this, the Presidency is the ONLY true symbol of our national unity and cohesion. It is the ONLY office with necessarily the most stringent prerequisites for the bearer to meet before being elected; and for a good reason. That the man or woman who holds the office must satisfy majority of Kenyans of his/her ability, credentials and fitness to lead before he/she is given the people’s mandate to govern; that his/her mandate comes DIRECTLY from the people, not a few who may be (as history has shown time and time again in Kenya) rigged into parliament and then corrupted and/or coerced to elect an Executive PM.  This is a non-negotiable basic democratic principle. If anybody, particularly the Prime Minister wants to wield National Executive Authority, he must get the people’s mandate to do so; our constitution must be of, for and by the people-not parliament. The president who is popularly elected represents the wishes of the majority and how they wish to be governed at any given time. Consequently, the people’s mandate must also be manifested in the president’s authority and power to dispense their wishes or in any other office of National nature for that matter; the PM’s office in this case provided he/she is elected directly by the governed. Parliament is the last place in Kenya to vest any kind of executive authority for crying out loud. Not just because it is a separate co-equal branch of government whose role is to legislate and not enforce laws but also because the Kenyan Parliament’s own record over the decades particularly in the last two years has been abysmal!   Further, the idea of splitting hairs between the so called “State” and “Government” is absolute NONSENSE! There is no such thing as State and Government world over. The state is the form upon which the government operates; they are one and the same. The government governs the state and this attempt to formalize the semantics through creating different centers of power to appease the current establishment is simply BAD policy. This thing will create a total mess for no valid reason whatsoever.

The majority in Kenya is in the MILLIONS, not a hundred or so in parliament whom the “experts” propose to shift the people’s power to and it is for this reason that the people’s wishes and choice of the national leader be properly reflected in the power of the presidency; our wishes, our votes and our mandate are of true value not of nominal or ceremonial value! The “experts” must not be allowed to punish the voters by devaluing our votes simply because of past abuses of holders of the presidency. Our votes and voices must be strengthened NOT weakened; remedies to fix past abuses should be directed at fixing the abusive loopholes, not at “we the people” as this draft proposal seeks to do. DEVALUING our votes is not the answer to past abuses of the presidency! It is tough enough already as it is that not all votes count equally in Kenya i.e. it is a fact that Kalenjin votes count as twice as Kikuyu votes for example, courtesy of electoral abuses engineered by president Moi; let the “experts” fix that first!

The proposal being championed by ODM calls for the party with majority MPs in parliament to “elect” an executive Prime Minister while we the people simply elect a “ceremonial” president, in other words our votes’ value only amount to a “figurehead”. If this asinine proposal was adopted, in a nation with tens of political parties, we could end up with an executive PM “elected” by a mere 40 MPs depending on party representation in Parliament but wielding national powers not given by the people. If you take into account the current coalition where ODM’s claim to winning the presidency was based on regional elections primarily of the Rift Valley, Nyanza and Western, the country’s power center could end up being concentrated on these three provinces!  We are being robbed blind of our authority in broad daylight; as we watch; people, this MUST NOT STAND. Replacing the people’s control of their government with a handful of corruptible power hungry so called “majority” in parliament, especially in a parliament with no true majority representation and where voter buying and corruption is the order of the day is idiotic. The whole idea of democracy is “Balance” through representation and in Kenya that would of course be the Executive, the Legislature and the Judiciary; all separate and co-equal.

The Executive enforces Laws passed by the Legislature through the Judiciary; it is very unambiguous. That is what we have had for a while now albeit imperfect. The “experts”, should have focused on strengthening each of these institutions and creating more balance and equality of the three branches of government instead of drastically weakening the only one which we the people have a direct say in and strengthening the one we have NO say in! I think that in itself is backward and very very unhelpful in advancing Kenya’s progress. We can only move forward if we allow true separation of the branches.  The very idea of usurping power of the majority of Kenyans through the back door and handing it over to a dictatorial clique of a few so called “majority” MPs is not only laughable but also treasonable. This is the same bunch of nutcases who leech on the rest of us with hefty salaries they refuse to pay taxes on while IDPs are going hungry daily; the same guys who allotted themselves the biggest pays anywhere on earth,  even higher than those of the United States Congress, the same bunch who refuse to form a tribunal to try Post election violence suspects, the same geniuses who blindly almost to the man/woman signed on to the so called “Grand Coalition” without any safeguards whatsoever and plunged the country into a state of perpetual confusion and campaigns;  the same corrupt MPs who were bought in “selecting” a speaker through intimidation; the same bunch who whole heartedly endorsed a bloated useless overlapping cabinet which is costing us Billions of Shillings in incremental costs to the poor citizens! Guys, make no mistake about this, if this is the so called “REFORM” that has eluded us for so long, if this is what Kenyans have been waiting for all these years; we must all stand and be counted; Wacha ikae, the answer is HELL NO!

The Draft proposes a PM with executive authority who heads the government and the cabinet chosen from among his peers in Parliament based on party majority: Plenty of problems with this arrangement;

· The cabinet is an executive branch of government charged with enforcing laws; in a true democracy such as the US (which incidentally it appears is what the “experts” are attempting to incorporate as well as the European models). It cannot be comingled with the legislative branch i.e. Parliament. It is a very clear conflict of interest; if the same Parliament which passes laws is also the same one enforcing them, who has oversight over its functions? Isn’t that the whole idea of the new constitution, to fix excesses of any Branch of Government? What is the value to “we the people” of shifting excess powers away from a popularly elected President to an unelected Prime Minister? I mean what value is that to anyone? Do we trust Parliament to police itself, especially KENYA’s parliament? The answer is NO! Even if we would, this proposal is wrought with glaring loopholes subject to massive abuses and manipulation.

· If the proposal intends to retain the presidency with true power, then by default that is Executive Authority; where is the demarcation line? Whom do “we the people” call on when things go wrong? We have no recourse, we cannot recall the PM because we did NOT elect him/her and his/her cronies can retain him in office for personal reasons while the country goes up in flames; it is not a mere possibility but a very probable outcome. WE NEED  direct RECOURSE to recall our government

· The draft also punishes the electorate needlessly by calling for a national election of ALL MPs in the event Parliament or the President fails to appoint a PM in 60 days. Elections are an expensive time and resource consuming exercise which we would rather invest on nation building. If the President and Parliament fails to choose a PM, that is their problem which shouldn’t be passed on to us but more importantly, it is yet another reason why the PM MUST BE ELECTED DIRECTLY BY THE PEOPLE in the first place if we must have a PM so we are NOT subjected to the endless theatrics! Enough already.

· The draft bars the elected president from holding a political party office while it explicitly exempts the PM from this requirement; WHY? How is it that a president popularly elected by the majority of Kenyans on a party platform is stripped of his/her party leadership position and effectively the ability to push the party agenda that got him/her elected in the first place while an UNELECTED PM with executive powers is permitted to hang on to his/her party leadership position and push the party’ s agenda on all of us despite the fact that we are denied the opportunity to vote for the PM! What rationale are the “experts” employing?

· Why is an unelected PM chosen by a few in the legislature exercising executive authority? It currently takes at least 50% +1 in parliament to elect a speaker who runs the legislature; the “experts” have lowered this threshold even further by letting a simple majority party in parliament choose a PM with national executive authority, and you don’t find any problem with that, really? In a county like Kenya with tens of political parties, a simple majority of 50 can choose a PM and lead into political stalemates! Further, the PM should mind parliament since he is an MP, there are three co-equal branches of government, why are we trying to marry them and create unnecessary conflicts of interest? The president is the Chief Executive of the country and he runs his/her branch through the help of the cabinet, cut out the NONESENSE about comingling branches of government and usurping the people’s mandate, come on people.

· Under the proposed draft, the roles would dramatically reverse without recourse to the detriment of all of us where the so called “head of government” (PM) would have the least support among Kenyans yet wielding the most power while the President with the most support among Kenyans would have the least powers; this is irreconcilable in any democracy. Does that make sense to anyone? Here is the scenario they are proposing:

	Executive Election & Authority as Proposed in the Draft Constitution
	President	Prime Minister
Election	Popularly Elected	Elected by peers in Parliament
	6,000,000 + votes	100 MP votes or less ( Party with Majority)
Per Capita votes	Each vote Counts	Only less than 25% of the votes effectively count
Actual Representative votes	6,000,000+	2,400,000.00

Authority/Power NOMINAL                       EXECUTIVE/ABSOLUTE

YOU DO THE MATH! WHO SHOULD HOLD MORE POWER AND AUTHORITY?!!! The people or parliament?

Reform should improve what we have, not worsen it and if you look at this so called reform proposals; they are by design, like many ideas our esteemed law makers come with, narrow-minded and intended for current political ambitions of the top echelon of our country’s leadership, period. They have great vested interest in the outcome of the proposed constitution and we must jealously guard against being hoodwinked once again; we have lost too much as a country already courtesy of them. The current government arrangement is a result of appeasement and accommodation that has proved very costly to the nation and caused quite an embarrassment to our country on the world stage, the worst thing we can do now is allow this bad experiment become permanent in Kenya as the ‘experts” propose. It is a nightmare we are living through and we need help to snap out of it.

The current leadership is finally coming to terms that they have a slim to none chance of ever winning a popularly elected national office again as should be the case in a democracy following the fiasco over the disputed elections in 2007 and so they are attempting a sneak approach through the constitution; the answer is NO! We are not that stupid. This is nothing more than ill conceived deceitful cockamamie power grab!

I mean who are these guys fooling? How stupid do they think Kenyans are? SERIOUSLY! To even suggest to Kenyans that their votes for the candidate of the only national office is “CEREMONIAL” and that the really power in the country rests with a clique of just 100 MPs whose elections to parliament we have not validated is whimsical; a complete joke! In a country of an estimated 38, 000, 000 the proposal denies at least 18,000,000 or 50% of us the opportunity to assign the proper mandate to the president and give it to 100 or 0.0003% of the population; who do we trust to reflect the wishes of the people and give us an open and transparent government, we the people or the leeches in parliament? Not even in England are these shenanigans in place, the British do not go through the pain of voting for a ceremonial queen every five years, the Israelis don’t vote for a ceremonial president, Japan doesn’t do it; but more importantly, Kenya is not England, France, Japan or anywhere else, Kenya is KENYA, period! I mean what value does that add to anybody, to subject the country to political shams and sideshows in pretend democracy; For what?  Shouldn’t power come directly from the governed in a true democracy?  Let the PM get his mandate directly from the people, not the corruptible parliament. It is an insult of the voters.

How about the proposal the “EXPERTS” came up with that the president send his own bills to parliament for enactment, sign them into law and enforce them? Really? Seriously? JESUS CHRIST! There is a clear conflict in this concept, all laws must originate from parliament, that is the exclusive province of the legislature, NOT the Executive, people, we must be serious. That would be turning parliament into a mere rubber stamp, didn’t we see that under Moi’s dictatorship? Was that not enough abuse? If there is anything we can learn from the world’s oldest and most prosperous democracy, i.e. the United States is that the republican system of checks and balances actually works! Trust me. Kenya’s constitutional “EXPERTS” are proposing an experiment certain to crash and burn; enough of the experiments, Kenyans are actually human beings and not guinea pigs or laboratory animals for endless political experiments, enough already!

I think if we have to have a powerful PM, let him/her head the legislative Branch of Government which has oversight functions of both the Executive and the Judiciary. By heading the legislative branch, the PM would effectively control the flow of legislation, the oversight committees of parliament which oversee Ministries and the Judiciary. Parliament has the “power of the purse” which the PM effectively would control, just how much more power should a PM wield?

Legislature

The proposal fails to address and correct an acknowledged “historical injustice” i.e. “EQUALITY OF THE VOTE”. While the experts went to great lengths to significantly dilute the value of our votes, they did absolutely nothing to remedy this persistently glaring problem which was a catalyst in Post Election Violence. The concept is very simple; representation in Parliament must be on a per capita basis, in other words no constituency is superior to another. That is why we fought for independence, EQUALITY! Majority RULE and Minority rights, HELLOOOO!  In the current system, sparsely populated areas especially in the Rift Valley have twice the representation as densely populated areas such as those in the Central Province. It is a fact in Kenya, for example, that Kikuyus are the largest single tribe making up about 23% of the population while Kalenjins are about 11% and yet there is almost the same number of Kalenjin MPs as there is Kukuyu MPs making the representation grossly unfair to Kikuyus in almost a 2:1 ratio! And this repeats in various degrees across our land; we need proper reapportionment of constituencies based on a fool proof formula. The situation is even badly compounded when resources are distributed as in the CDFs. In the current arrangement, each constituency gets almost equal sums of annual allotment, this is disproportionately UNFAIR to the densely populated areas that must give up so much of locally generated revenues to the sparsely populated areas and yet are way under-represented in parliament!  In the US for example, the congressional districts are determined based on population density and not landmass contrary to what the Rift Valley MPs are arguing for; that is unsustainable. Alaska is the biggest state in the US in landmass and yet it has only 3 members in Congress, two senators and one house member, point being representation is a people driven function, NOT landmass! Get real people.

What about the idea of Affirmative Action and “set aside” seats for women in parliament? Is that really necessary? Is that democracy? Please don’t get me wrong, I respect women and want them in positions of authority and power but you can’t require people to vote based on gender and call it democracy. NO! I mean women are the majority in Kenya, for all practical purposes the country could easily be run by women if they so chose, my point is that we want the best candidates to run for office and win based on ideals and what they bring to the table, their principles and record, NOT GENDER! That is asinine.

The proposal also seeks to expand government to Excessive and Burdensome levels for a country too impoverished to feed her people; The proposed structure of parliament is nothing less than legalized exploitation of the masses who must foot the daily living expenses of these tax cheats, I mean isn’t it enough already that we have a bloated cabinet with multiple overlapping responsibilities drawing unjustified salaries off the backs of the poorest of the poor? Did you know there is a budget of KSH.254, 000,000 (1/4 a Billion Shillings) to renovate the PM’s PRIVATE residence to make him feel like a Prime Minister?! Not to mention the waste on the President’s quarters, vice President, Speaker of Parliament and the other looters? All that while IDPs are going hungry in camps?!! What additional efficiencies do we expect to gain from a convoluted parliament except a conundrum? And on top of that they are adding MAJIMBO! I mean are these folks serious? Look at these statistics for example and contrast the current set up in Kenya and the US where Kenyan MPs earn 3 times more per capita than their US counterparts for doing absolutely NOTHING and yet the “experts” have the audacity to increase this level of ROT??!!! :

	USA	KENYA
Population	300,000,000.00	38,000,000.00
Members of Congress/Parliament	535	220
Per capita Representation	560,747.66	172,727.27
Average Annual Salaries	$        145,000.00	$      130,216.00
Per Capita Salary	$                     0.26	$                   0.75
Taxes Paid	YES	NO!
Annual Household Income	$          37,000.00	$              600.00
Break Down:
Monthly Basic Salary	12,083.33	495,000.00
Monthly House Allowance	–	70,000.00
Monthly Car Allowance	–	75,000.00
Monthly entertainment Allowance	–	60,000.00
Monthly Extraneous Allowance	–	30,000.00
Monthly Seating Allowance	–	48,000.00
Total Monthly Pay	12,083.33	778,000.00

David ochwangi