My Friend David,

Your analysis brings to mind 4 things.

The first reaction I would call the Ruto Syndrome. In this category, we have people who believe in nothing. They wait for Raila Odinga to make a move so that they can counter. I will explain.

In the period we have been agitating for a new constitution, we have Kenyans who have been very honest and to the point. They pointed out what they needed fixed. They did not wait for someone to point mistakes to enable them react and counter. They knew what they wanted and made as much effort to put their points across.

I am happy that many of us are on this side of History, and this is why our able Friend, President Obama said as much.

The second issue is about democracy and constitution making. We have the United Kingdom as one of the oldest democracies and yet, they have no written constitution. But they are able to manage themselves very well. What is it that makes them achieve such a feat at a time Kenyan is desperate to put her constitution down in writing? The problem with us is honesty.

We are not honest to ourselves and to our people, to an extent that we even override the sovereign will of the people. It does not matter to us how many people die in the process. What matters to us if the fact that we are in power. Can we fix this temptation to override the sovereign will of the people and accept electoral results as they are announced? Can we be men enough to also accept that in Africa, elections can be lost?

On the ineptitude of our parliamentarians, I agree with you. We all saw the many times they changed their minds on what they really wanted amended in the Draft when they had the time. But I am happy that we had men and women of quality at the COE. They ensured that the Draft was beyond manipulation by our often erratic MPs. They raised the threshold beyond their capacity to manipulate. And to this, we must give the Committee of Experts a thumbs up.

I have read the various drafts and I am convinced that this is the best document we have and we must now move on. 20 years has been such a pain and in those 20 years, we have seen people who hitherto were change champions mellow to status quo operators.

In those 20 years, we have seen people who were status quo agents join forces with change agents just to cleans their past images, then when they got rained on, their donkey colours came back full time.

In those 20 years, we have seen enough confusion. People who do not know what they want putting forward absurd points of interests as their contribution to the debate. And with this Proposed Constitution, we MUST now put all journeymen to rest.

We all know how difficult it is to craft a constitution that will be braodly accepted by all. We can see the current heat being generated now. The Church are hanging on to straws just to remain relevant; Mzee Moi is giving us his advice after failing to deliver us with a constitution when he had the tools of state; Ruto waiting for Raila to make a move for him to counter; Kibaki keeping his cool as always until all road is clear; and the list is long.

What we have, will give us less government and will adequately check the abuse of power from the President.

Kenya has been a failed state just because the President took all the powers unto himself. It is time someone checked him out. And this has been our major impediment against the fight against corruption and tribalism. The President has been able to appoint his tribesmen to all lucrative state appointments courtesy of our constitution. He has been able to ensure that nothing happens to his friends as they steal and plan more scandals.

This Document will leverage some of these powers and for sure, we can begin the fight against corruption and tribalism with earnest.

Lastly, no Constitution will ever be perfect. Just like not all of us will see the Kingdom of God. We must do the best with what we have, and what we have is the best for now. It will enable us to preach the virtues of equality, peace, national healing and reconciliation.

My vote will be an absolute YES.

Odhiambo T Oketch

— On Wed, 4/7/10, David ochwangi Wrote:

Once again we are called upon to enact an historic document that if approved would reshape our nation for the better, we are told-does it? But once again, I am asking Kenyans of all walks of life to exercise caution and thread very carefully; this draft (attached) is half baked in my opinion and must either be revised thoroughly or simply be rejected. The just concluded parliamentary “review”-if you dare call it a review, of the re-revised draft is perhaps the clearest manifestation of abdication of duty by the so called “the people’s representatives” in decades. As much as we applaud the efforts made thus far, even as noted by Kenya’s most priced friend, US President Barrack Obama, we still must not allow a flawed document to pass the proper test of scrutiny or defer clearly observable problems in the draft to the future. This is the time to GET IT RIGHT time lines and deadlines notwithstanding. The need and benefits of getting this document right far outweighs and supersedes any arbitrary deadlines set up just for the sake of time lines. Not one, (1) amendment, ONE, was debated let alone passed to improve the document. I, like many Kenyans have patiently held back my consternation about the draft because we saw some improvements in Naivasha by the PSC vs. the original CoE draft; I expected this “honorable” parliament to, at the very least, tweak the remaining issues and try to better this draft but once again, true to form, our traditionally do nothing and collect Millions in remuneration parliament failed us miserably, I mean it was to be expected but this degree of ineptitude by our representatives is just absurd. Let’s not forget that it is this parliament, to every man and woman, which gave us this perpetual confusion of the Grand Coalition, so there are no surprises here. In fact, the best barometer on how to proceed with respect to this draft is to observe where our rudderless “leaders” stand on this draft and then RUN as far away in the opposite direction as you can!

At the very minimum, any constitutional changes to the existing document must by necessity meet ALL of the following tests:

a) Improve the welfare of every Kenyan, in other words, I as a voter must be satisfied that the changes will improve my standing in our country and by extension, all Kenyans,

b) Is NEUTRAL and an EQUALIZER with respect to economic, political, social and religious provisions, i.e. no special interests are specifically provided for in the new document in the guise of correcting past “injustices” or perpetuating a set of precedents, for instance, this just approved draft specifically provides special status and preference of the Islam religion and completely ignores all others, even concerns of the NON-MUSLIMS are completely ignored, it in effect makes Kenya an Islamic state, and therefore it fails this test,

c) That any and all growth in government mandated in the new document must be fully paid for and is cost neutral (does not raise new taxes to fund the mandated growth) during the entire existence of the growth, in other words, it MUST NOT be funded through tax or debt increase or be a source of undue burden to the Kenyan taxpayer , none of the exponential growth in this new document is paid for and once again it fails this test and

d) It must be realistic, promote individual responsibility by discouraging dependency and provide true mechanisms of enforcement otherwise it is not worth the effort nor the paper it is written on; for example the new document calls for a “Welfare” state from cradle to grave where the less fortunate and their dependents become the “charge” of the state; this is just too vague but clearly opens the Pandora’s box that the “Nanny” state has no capacity nor the ability to support, neither the “experts” nor the PSC have a CLUE what it is they are advocating; the system would crumble on its own weight and be saddled in eternal strife courtesy the so called “BILL of RIGHTS”.

This new draft law COMPOUNDS our problems, not improve the country. The following, in my humble opinion must be either removed or revised for this thing to have any true meaning at the referendum otherwise it is a nullity.

RELIGION:

Whatever happened to the doctrine of SEPARATION OF CHURCH AND STATE? Islam is effectively and expressly recognized. Its legal functions funded by the taxpayers, and we are being asked to endorse this. NO! I think it is wrong and for this reason alone, ALL non-Muslims should vote AGAINST this draft, it is unfair and simply untenable. The “experts”, the PSC and Parliament as whole pejoratively made a complete mockery of this provision by trying to fool Kenyans in declaring that “there shall be no state religion” but contemporaneously proceeded to effectively make Islam the de facto state sponsored religion in Kenya: The “Kadhi courts” whose legal framework, “Sharia” is based on the Holy Koran, is mentioned no less than 17 times in the draft, the term “Muslim” not less than 8 times; there is no mention of any other religion! Why on earth would NON Muslims vote to approve a document so flagrantly discriminatory? What recourse do we have once we vote to subsidize Islam in Kenya? I know it is already in existence, trust me, I get it! So what difference would it make one way or the other voting for or against the new draft, right? I mean it doesn’t change the status quo and therefore, I am asking all NON-MUSLIMS NOT to endorse this historical injustice and inequity – we don’t want any part of it; let’s just keep what we have until we have a true chance to fix it once and for all. Some have argued that this has been in existence since independence, to them I say, so has the rest of the document and if the purpose of this exercise is to correct “Historical injustices”, well then my fellow Kenyans, this is one of those historical injustices we simply can’t ignore and to the extent the sanctimonious “experts” and Parliament have completely ignored our pleas, then we the people have no choice but to reject this fatally flawed document. This draft will fail not because of we the people but because our so called leaders failed, once again, to heed the people’s pleas, simple as that. But if on the other hand they choose to listen to the majority of Kenyans, there is a very simple remedy to this entire hullabaloo: The “CoE” and parliament which has labored to copy other constitutions could learn from the US for example and address religion in the constitution as follows:

Parliament shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; (The US Constitution).

Very simple, non controversial and fair approach that levels the playing field for every Kenyan, no sane human being, regardless of religion would find this discriminatory at all; this is not a denial of any religious rights but rather a fair basis of reinforcing and protecting ALL religious rights without favoritism.

BILL OF RIGHTS:

This draft practically transfers all individual responsibility to the state and creates a culture of dependency; it promotes “Communism” which the country can ill afford, the same system that stagnated development in Tanzania for decades and led to the implosion of the Soviet Union. Its pronouncements will saddle taxpayers and the state in endless debt, unduly high tax burden, stifle investment, competition and court /tribunal fights over the so called “FUNDAMENTAL/INDIVIDUAL RIGHTS”. Unless Kenya as a country has a surplus of funds, tones of surplus funds at that, to fund the new constitutional mandates, which have never been before promulgated in any constitution that I am aware of, we should be geared for generations of the welfare state. I don’t know where these “experts” sourced their expertise or materials from on the subject matter but there is such a thing as COST/BENEFIT ANALYSIS, you don’t initiate a new program, much less constitutionally mandate one unless you can fund it, I mean it is the most natural and the logical thing to do, right? I mean even in the United States, arguably the world’s richest country does not have such “BILL OF RIGHTS” in its constitution, what is Kenya smoking? What analysis did ODM, PNU or the “CoE” conduct to arrive at the conclusion that individual responsibility in a country with over 50% unemployment and whose budget is always in the RED (Deficit) suddenly can mandate and pay for these new BILL of RIGHTS? How? Show me the money. It can only be done through increase in taxes, or globetrotting begging for funds, either way this is not good. The following need to be stricken off the draft:

Economic and social rights

43. (1) Every person has the right—

1. to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;

2. to accessible and adequate housing, and to reasonable standards of sanitation;

3. to be free from hunger, and to have adequate food of acceptable quality;

4. to clean and safe water in adequate quantities;

5. to social security; and

6. to education.

(2) A person shall not be denied emergency medical treatment.

(3) The State shall provide appropriate social security to persons who are unable to support themselves and their dependants.

All these “Economic and social rights” above must be funded somehow, how do the experts propose to pay for them? How do we enforce these provisions? These unfunded mandates cannot be constitutional unless we have looked that far in the future and determined that we can honestly fulfill them; there is no analysis that I am aware of that guarantees that. This is nothing more than a poorly crafted set-up which will set the country on a permanent collision course with itself; nobody can guarantee Kenyans the highest attainable Health Standards without first telling us how to pay for it, it is a noble idea but a dream, not even in the US is Health Care constitutionally guaranteed. Similarly, Social Security must be paid for, how? In the world’s richest country, not everyone “unable” to support themselves is eligible for Social Security benefits much less their dependents, you must earn your way into Social Security benefits; further, Social Security is not a constitutional mandate/guarantee. My point fellow Kenyans is that we are being fed a bill of goods.

REPRESENTATION:

I don’t know what the experts were smoking when they crafted this chapter especially with respect with gender by mandating the following, “not more than two-thirds of the members of elective public bodies shall be of the same gender”! Based on what? I can’t reconcile the principle of democracy (free choice) with this cockamamie of requiring representation based on gender, how do you even start enforcing this provision; the state police going to the each constituency and demanding that voters elect a woman or man in the name of “democracy”? I mean how else are you going to enforce this thing? Any representation based affirmative action in favor of gender, age, disability or any other specially curved class of citizens is undemocratic and does NOT belong in any constitution.

LEGISLATURE/PARLIAMENT:

Do away with the senate; it is just a complete waste of resources to add another layer of rot on top of an way under-performing parliament. Parliament already has excess capacity, too much time on its hands, it is the most selfish and gluttonous body of self righteous humans on the face of the earth that I know. Why do we need to layer of rot? In fact, let’s trim parliament and make it more lean and efficient, require them to be on the clock and punch in every time they show up for “work”, let’s demand that they earn an honest day’s living, then and only then would be an additional arm within the legislature be an issue, not now- particularly if the primary purpose of the senate is to “check” the presidency, REALLY? UH!

COUNTY GOVERNMENTS/DEVOLUTION:

I am totally opposed to this new layer of government, no value or purpose whatsoever to the common taxpayer but a sinkhole for yet another layer of unfunded government expansion. This is indeed an unnecessary burden on the taxpayer, Kenya is not the size of Russia nor is her population that of China, we are relatively a small country and there is no need of Balkanizing the country with redundant and overlapping layers of government. For starters we already have the Provincial Administration, we also have the County governments overseen by the Ministry of Local Government, where have these two units failed that we need additional government? Paid by who? This is nothing more than a form of MAJIMBO which we must reject, has nothing whatsoever to do with bringing government to the people, NO! Don’t fall for it.

PRESIDENTIAL AUTHORITY AND ELECTION:

Let’s give the president LINE ITEM VETO authority to help efficiently and effectively pass good bills into law without the usual back and forth between the legislature and the executive. The current draft is too convoluted particularly with respect to when the president rejects parliament’s bill a second time, does the bill die or automatically become law?

A simple majority should be all that is required to elect a president, 50% +1 of the votes cast; remove the 25% votes from more than one half of the “Counties”; Democracy is about MAJORITY RULE MINORITY RIGHTS regardless of where the majority resides, this is a backward provision.

Also the requirement that a petition challenging a presidential election be filed with the Supreme Court and determined within fourteen days is not only wrong, capricious and reckless but also extremely ill conceived and a mockery of justice and rule of law. Evidence takes a while especially in matters of national importance, I mean a petitioner or petitioners can be from all over the country, are these “experts” some of them experienced attorneys telling us that lawsuits are filed and determined within 14 days? I mean is that even realistic? We want justice but not rushed phony justice driven by arbitrary deadlines, come on guys!

ATTORNEY GENERAL AND DIRECTOR OF PUBLIC PROSECUTIONS:

The draft gives complete protection and immunity of any and all sanctions against the Attorney General and heavily seeks to regulate his subordinate, the Director of Public Prosecutions! WHY? So in all likelihood we can end up with the DO NOTHINGS like the incompetent AMOS WACKO WAKO who is the epitome of impunity in Kenya as the head of law enforcement for decades; we need recourse, not of the Director of Public Prosecutions but rather the AG herself/himself, hellooooooooo!

JUDICIARY:

Too many layers of the court system; Supreme Court , court of Appeal, High Court, the Magistrates courts, Courts Martial, the Kadhis’ courts; EH!

RATIFICATION:

Approval of any constitution must be a super majority and not a simple majority, we don’t need to divide the country in the middle, NO!

Finally my friends, I have attached the revised copy of the Draft constitution with comments and I hope you will review it and comment as well; my point is that we shouldn’t pass or agree to pass something just for its historical significance alone even when it is palpably obvious that it is wrong. This draft is half baked and needs plenty of work, the politicians have acknowledged as much, we are tired of half baked goodies that end up consuming the public and its resources after passage, look around you, look at the confused Grand Coalition and what we are paying for it. Tell these folks that until and unless they fix this thing, the answer is very simple; your vote on this draft in its current form is NO!