Kenya: Referendum Offers Kenyans Chance to Break With the Past

Previously published in the Business Daily.

The August 4 referendum on the draft constitution is a pivotal event in Kenya’s history.

This referendum gives Kenya the opportunity to break away from the past; a past that has benefited a few to the exclusion of tens of millions of Kenyans for over four decades.

It offers Kenya a clean slate to begin anew and face the challenges that a new global order brings.

For millions of Kenyans, everyday life brings with it struggles of having to make a decent living with limited resources in a country lacking in the barest tenets of constitutional order.

For many, the lack of a well functioning constitutional order that affords them the most basic protections – not one that denies the majority access to the Nation’s resources – is a daily, long running injustice.

Voting in the current referendum offers Kenyans the distinction of participating in one of the most inclusive constitution making processes in the world.

Kenya has undergone, through largely peaceful times, a particularly inclusive and participatory constitution making process and Kenyans should be very proud of that.

While the constitution making process has had its fits and starts, what Kenyans have in the proposed constitution is the product of much input and refinement that they should unreservedly support.

The birth of the current constitution, under the yoke of colonial rule, and its amendments to fit the whims of whoever was in power, means that the existing constitutional order does not reflect the aspirations of Kenya today.

In Kenya’s current constitutional order, virtually every system of government; the Executive, the Legislature and the Judiciary, seems to work against, not with, millions of Kenyans.

As many Kenyans rightly complain, the Executive, for example, wields unbridled power over the lives of ordinary Kenyans and corporate citizens.

Kenyans, we believe, have by advocating for the proposed constitution, mustered the courage to fundamentally alter their governance structures in ways that begin to address the country’s most persistent inequalities.

Those who advocate against the proposed constitution want to preserve the undesirable status quo – inconsistently with the promise that addressing Agenda 4 items is the best way of guaranteeing the path of peace and prosperity they surely advocate for too.

Agenda 4 items are the long-term issues relating to land reform, poverty, inequality and regional imbalances that were identified as some of the underlying reasons for the post-election violence in 2008 as agreed by Kenya’s President Kibaki and Prime Minister Raila Odinga.

A powerful and pure presidency, what many now refer to as “an Imperial Executive” is one of the main reasons Kenyans have agitated for constitutional reforms for nearly two decades. And this was warranted.

Both the presidencies of the late Mzee Jomo Kenyatta and Daniel arap Moi set Kenya on the wrong path.

After the constitutional amendment in 1964 making Kenya a republic, all the constitutional amendments thereafter were engaged primarily to perpetrate the interests of the ruling elite, creating the current disproportionate distribution of wealth curtailing opportunities for millions of Kenyans and stifling justice and accountability within government.

It is therefore perfectly understandable that Kenyans are wary of creating another “Imperial Executive” that is unaccountable to them, but subsists on their tax shillings.

To capitalise on this fear, opponents to the proposed constitution falsely argue that the draft establishes a powerful and pure presidency.

This is extremely misleading and inaccurate.

If the proposed constitution is approved in the referendum in August, a new constitutional order will for the first time tie the president’s power to account both to parliament and a newly empowered independent judicial system. This is how.

First, the most important powers of the president will be subject to approval of the National Assembly.

These include the powers to appoint Cabinet Secretaries; the Attorney General as well as High Commissioners and Ambassadors.

This is a welcome development that will provide much needed checks and oversight to the presidency.

Although lacking in several aspects, Kenya’s National Assembly has evolved through the sixties to current times.

Young, educated, and professional Kenyans have started emerging and begun to advance the power of the Kenyan legislature even in the current constitutional order.

The Legislature has in the recent past asserted these powers loudly, most recently by halting the re-appointment of Justice Aaron Ringera as the head of the Kenya Anti Corruption Commission.

Sadly, parliamentarians have also abused these new found powers by voting themselves some of the highest remunerative perks in the world and avoiding paying tax.

An illegality cured by Article 210 (3) of the proposed constitution that bars any State official from evading paying taxes.

Power base

Similarly, the president’s power of appointment of judges is subject to a recommendation by a newly empowered Judicial Service Commission.

In addition, the proposed constitution does away with appointments to the cabinet from Members of Parliament.

It requires the president to appoint a diverse cabinet on the basis of ethnicity, gender and qualifications.

Alexander Hamilton, one of America’s first Constitutional lawyers, may as well have been talking of the Kenyan judiciary when he proclaimed that the Judiciary is the weakest arm of government.

A major factor that gives credence to the perception that the Kenyan Judiciary is indeed the weakest arm of government is its complete dependency on the Executive for funds and the unchecked appointment of judges by a sitting president.

Under the current constitutional order, the Kenyan judiciary is under control of the executive and legislature with the allocation and management of funds to the judiciary controlled by the Treasury.

The situation is dire, a research delegation team from the International Bar Association (IBA) and the International Legal Assistance Consortium (ILAC), found that funds for the construction of courts in the 2009/2010 budget were allocated to the Judiciary through the Ministry of Public Works.

Appearance, no less than the reality of judicial independence is essential.

For a functioning economy, a country’s judiciary should have the public’s confidence as well as a sufficient power base.

The judiciary does not need coercive powers to protect, defend, arbitrate and uphold contractual agreements of Kenyans, both human and corporate.

All it requires is the public’s confidence, integrity and muscle for it to play its required role in society.

That is why the establishment of the Judiciary Fund in the proposed constitution is welcome.

The Kenyan judiciary will now get money, appropriated by parliament, directly from the Consolidated Fund.

Furthermore, the judiciary can now directly receive grants, donations or bequests from developmental partners and other sources, without the money being channelled through the Treasury. That is an impressive power base.

For this power to be effective and work for the good of the country however, depends on the competent application of the law by the men and women who run the judiciary – the judges.

Unfortunately, the current Kenyan Judiciary is perceived, both by normal citizens and the private sector, as inept.

It is a sad indictment when society freely used this statement; “why hire a lawyer when you can buy a judge?”

A new constitution therefore gives Kenya the chance to peacefully and legally do away with the current judiciary and start on a clean slate.

This is an issue of great importance for the country’s future stability.

This is why the business community should in particular support the proposed constitution.

A Yes win will lead to the resignation of all current sitting judges.

In the new appointments, the business community should then lobby strongly for lawyers well versed in the business laws to be appointed judges.

This will ensure that the Commercial Court division gets judges well versed and attuned to the regions business climate.

The Law Society of Kenya, consumer protection bodies and every interested party should also use a Yes win to lobby for appointment of judges well versed in the law and of high moral and professional integrity.

Executive power is, however, reduced even further in the draft. Consider the Police.

The current constitution, gives the president complete authority over the police force through the unfettered right to appoint and terminate the police commissioner, who in turn controls the entire police force.

Today, neither parliament, nor any other body, plays any role in appointing or removing the police commissioner.

The president has absolute discretion over the appointment of the commissioner who serves at the pleasure of the president with no security of tenure.

Without any checks or balance systems in place, one of the key coercive arms of the State, gives a sitting president immense power and control over all other aspects of government operation.

Kenyans have experienced the dangerous consequence of this form of government for decades.

The proposed constitution offers a reprieve from such a scenario.

Article 245 (2) (a) removes the president’s sole authority of appointing the new position of Inspector-General and gives the National Assembly veto powers over any of his appointments.

If the Police Reforms Implementation Committee, chaired by the current CEO of Kenya Airways, Titus Naikuni, is able to successfully implement the 200 recommendations of retired Judge Phillip Ransley’s taskforce, the Kenyan police force envisaged in the proposed constitution will be a force free from undue Executive control.

These few examples demonstrate the extent to which the powers of the presidency are kept in check in the proposed constitution and the reigning in of an “Imperial Executive”.

The presidential election is itself fundamentally altered.

With the passage of the Draft, presidential and national assembly as well as county elections will be held on a fixed day; the second Tuesday in August of every fifth year.

It is not lost to Kenyans on how sitting presidents have in the past used the election date as a political weapon to get their opponents on a wrong footing.

Presidential aspirants must also garner more than half of all votes cast and at least 25 per cent of the votes cast in more than half of all 41 counties.

That means the president must have a large popular political base and mandate to govern.

Hardly the kind of ‘Imperial President’ Kenya has had since independence.

The misunderstanding of the proposed constitution unfortunately runs deep, not only among the common citizen, but high up in government and academia.

On Thursday April 1st, 2010, when the Minister for the Environment and Mineral Resources, John Michuki, attempted to amend the Draft then in Parliament, on the basis that it allowed soldiers “to go on strike,” he was doing so from a mistaken point of view.

Kenyan political commentators like Mutahi Ngunyi egged on the minister, wrongfully stating that the proposed constitution gave soldiers a “constitutional license to stage a mutiny.”

Both Mr Ngunyi and Mr Michuki are woefully mistaken. Article 24(5) of the proposed constitution gives parliament the power to limit the application of all the guaranteed rights and fundamental freedoms to those persons serving in the Kenya Defence Forces or the Police Service.

That includes the right to form, join or participate in the activities and programmes of trade unions guaranteed under Article 41(2)(c).

In fact, the list of rights under the proposed constitution that can be denied to members of the Defence Forces and the Police Force are much broader.

Path of peace

The proposed constitution, for example, denies members of the two groups the freedoms of privacy, association, assembly, demonstration, picketing, petition, economic and social rights as well as the rights of arrested persons.

Both Mr Michuki and Mr Ngunyi did not read, or ignored, Article 24(5) and only referred to the guarantee to form trade unions granted to every Kenyan under the much later Article 41(2) (c).

Even without reading the proposed constitution, one would know that the practice among States has never been to give armed forces such rights – and that is all the more reason why senior government officials and intellectuals should check their facts before expressing uninformed objections that distort the truth and facts of the document.

Let us also look at objectors to the proposed constitution who argue that by voting ‘No,’ they are voting for stabilised reforms.

The claim here being that Kenya needs stability, and that the ‘No’ road is the path of peace, courage and presumably economic development.

In effect, this argument presupposes that the proposed constitution is a path to chaos and fear. This is not true.

Constitutional reforms are part of the Agenda 4 items in the Kofi Annan Agreement of March 2008.

The proposed constitution lays down a basic framework for addressing these long term issues in several ways.

The creation of a National Land commission (NLC) is a good example.

Establishing the NLC with powers to set the upper and lower limits of private land holding is, in our view, precisely the kind of reforms anticipated in Agenda item 4.

Rather than producing chaos and fear, these reforms will bolster an inclusive and sustainable democracy into the future.

When it comes to land matters, selective reading of the proposed constitution is the basis of much of the misunderstanding of the Draft Bill.

Proponents of the No campaign, in trying to prove that the Draft is bad law when it comes to land, refer to Article 40 (3)(a) in the Bill of Rights.

Article 40 (3)(a) allows the State to regulate the use of any land in the interest of defence, public safety, public order, public morality, public health, or land use planning.

While the proposed constitution allows for compensation from the government for such an eventuality, it goes a step further.

The Draft makes it possible for occupants of land that has been acquired by the State, but who hold no title to the land, the chance to prove occupancy in good faith, and therefore receive compensation from the government.

This is a welcome development. The issue of squatters in Kenya is not only a highly emotive matter; it has lead to killings and displacements. Politicians have for years exploited squatters to achieve their ends.

Public finances. The Proposed Constitution provides for an Equalisation Fund out of which basic services in marginalised areas will be paid for while a Commission on Revenue Allocation (CRA) will ensure the equitable allocation of revenue.

Further, a new powerful legislative chamber, the Senate, is charged with the primary legislative, and thus fiscal, functions with regard to matters that fall within the counties rather than at the national level.

Importantly laudable is Article 211 (Borrowing by National Government) which imposes reporting requirements to Parliament on loans procured by the national government.

In recognition of Kenya’s history of financial malpractices, such reporting requirements should have been extended to the procurement of goods and services under Article 227, to a value of Sh1 million.

A country largely unendowed by natural resources, Kenya’s largest economic resource is its people.

Kenyan professionals are among the best educated and hard working in Africa.

Kenya’s economic power in the region is largely due to the entrepreneurial spirit of its people.

Unfortunately, the current constitutional order greatly restricts Kenyan professionals in the diaspora who, due to varied reasons, require the citizenship of the country they reside to maximize available economic opportunities.

By denying its citizens the benefits of dual citizenship Kenya loses out on the advantages of dual nationality such as broadening the country’s economic base, fostering trade and investment between the dual citizen’s two respective countries and ease of travel to countries that would normally require long and cumbersome visa application processes.

The constitutional process should not be viewed through the narrow prism of political expediency and the current political alignments in the country.

Consequences of a ‘Yes’ victory are large and far reaching through every fabric of Kenya’s society.

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