Harmonized Draft a real time bomb

2^4th November 2009

I have taken my time to read the Harmonized Draft Constitution of Kenya, and I can with all confidence urge Kenyans to reject it. It is worse than the current Constitution.

In making this appeal, I have taken cognizance of the fact that the problem all along has never been the Constitution; the problem has been the Executive which has over the period emasculated all powers to an extent that we have an imperial presidency, one that even the Judiciary cow-tows to.

1] Chapter 4 Citizenship

At Article 19- Citizenship by naturalization; A person who has been lawfully resident in Kenya for a continuous period of at least seven years, and who satisfies the conditions prescribed by an Act of Parliament, may apply to be naturalized as a citizen.

This basically means that we may import Artur Sagasyan and his brother, host them for seven years, naturalize them, and then activate them for the intended reasons. It smells. Already, Kenya has been invaded by none Kenyans who have made the cost of property to be out of reach for indigenous Kenyans, and this Act will make Kenyans be subservient to foreigners, pirates and charlatans.

2] Chapter 6 The Bill of Rights

The Bill of Rights is very utopian. It lists all the good things then in one single fell swoop, curtails them all.

At Article 33 [1] No right or fundamental freedom set out in the Bill of Rights may be limited except-

(a)    by a limitation or qualification expressly set out in the provision containing that right or fundamental freedom or by law;

The usage of the two words, ‘by law’, curtails all the beautiful provisions as set out in the entire Bill of Rights. It basically means that your fundamental rights are abrogated herein.

Again, at Article 76, Human Rights and Gender Commission is being entrenched in the Constitution. I bet this is wrong. A Commission can be effected through a mere Act of Parliament not by entrenchment of the same in the Constitution.

3] Chapter 10 Representation of the People

Article 110- Electoral disputes- [1] An Act of Parliament shall establish mechanisms for settling electoral disputes.

Honestly, Kenya almost went to the dogs due to an electoral dispute last year and now that we have a chance to fix the problem, we are shying away from the same. Instead, we are entrenching things like Human Rights and Gender Commission into the Constitution instead of being clear on how we will fix electoral frauds.

On the Independent Electoral and Boundaries Commission, the Harmonized Draft does not come out clearly. It gives a loophole through which there can be manipulations. Look at this;

Article 112 [4] The Commission shall exercise its powers and perform its function in accordance with this Constitution and national legislation.

We do not need any national legislation here. We need the Constitution to be very clear on this. This ambiguity is what has made Kenya gain in several new Districts in the last 4 years.

Chapter 11- The Legislature

This has been badly drafted. It segregates against Kenyans, men in particular. Why must we give women special seats and at the same time, allow them to compete fairly with all. Article 126 [1] is a classic example of how not to do it. We need to be very clear on what we want, how many members of either the Senate or Parliament and subject the same to Universal Suffrage. It makes nonsense of gender equality. We must then accept the status of women as being otherwise less in stature to men, to the extent of being equated to children, disabled persons, and minorities despite their numbers as recorded in the last Census.

Article 131 [2] Parliament shall enact legislature to provide for the grounds on which a member may be recalled and the procedure to be followed.

This should have been very clear. But leaving it at the mercy of the same people to be affected by the recall, is slightly being disingenuous, playing roulette, telling us that it shall not be done.

Chapter 12- The Executive

I am now more convinced than ever before that all those MPs who are talking about the powers of the President being reduced and given to the Prime Minister have not read this Harmonized Draft. The Draft makes the Presidency more imperial than ever before. Have a look at this;

Article 158 [2] The State President, in accordance with this Constitution and the law, shall appoint and may dismiss-

(a)    the Cabinet, including the Prime Minister, the Deputy Prime Minister and the Ministers…….

Look, he does not need to have any reference anywhere. What do you make of the Constitution that gives the President such sweeping powers? Then it goes further to give the President all those powers to appoint all and sundry, and you want to call it weak? Article 158 takes us back to the pre-Section 2[a] days. And we must not pretend here, we are creating a dictator here, an imperial President to boot.

Articles 179 and 180 proves how week the office of the Prime Minister shall become. And at Article 180 [1] (a) and (b), you see the kind of manipulation that waters down the office of the Prime Minister. It basically reduces the stature of the same office because the State President can appoint anybody to that office, not necessarily the person with the largest number of Members of Parliament.

Chapter 13- Judiciary

I bet all courts of law are meant to uphold the rule of law, so, why do we have classification of courts? Why have a Constitutional Court? And then make it that draconian as to limit our Fundamental Rights- Article 203 [9] All decisions of the Constitutional Court in matters relating to elections are final.

This is dictatorial and cleverly meant to subjugate the rule of law. This Court will be parked by Executive Apologists who will be switched on as desired for the desired results. The moment they lock you out, even in direct contravention of the law, you are left with no more avenue to seek solace. This basically abrogates our Fundamental Human Rights.

Chapter 14 deals with Devolved Government, and as it is now, we already have too much government in our lives. This new Draft takes it to our doorsteps. It is giving us no breathing space. It will even curtail our parking rights, to an extent that the Government will tax you for parking your car in your compound, because they must generate revenue to maintain this monolith of a Government that has been proposed.

I bet we need less government in our lives.

I am not a lawyer yet I can pin point these inconsistencies. I bet Kenyans ought to reject this Draft, come back to reality and demand that the law as we currently have it, must be obeyed. We cannot have a government that does not respect the law of the land. That has been our problem, not the lack of good laws.

Can we start by respecting the law as it exists? The bottom line; the current Constitution looks better than this thing that has been cooked by many cooks.

My 2 cents. Over to you brothers and sisters.

Odhiambo T Oketch

Komarock Nairobi.