Why I Disagree With Mutahi Ngunyi on the Constitution

In an article titled “Draft Law is Too Playful and Experimental,” published in the Daily Nation on Monday April 5, 2010, Mutahi Ngunyi dismissed the Proposed Constitution of Kenya as too playful and experimental.  While Mr. Ngunyi is entitled to his view of the Proposed Constitution, as a Kenyan who has an equal stake in a new Constitution like him, I could not disagree more. Mr. Ngunyi is wrong on all three reasons he gives for his decision to vote against the Proposed Constitution.

Let me begin with the one reason I believe that Mr. Ngunyi has not read or even understood the Proposed Constitution. He argued that the Proposed New Constitution allows “soldiers to go on strike” which is in essence giving them a “constitutional license to stage a mutiny.” You may remember that it was John Michuki who attempted to amend the Proposed New Constitution on that basis in the circus in Parliament on Thursday April 1st. Both Ngunyi and Michuki are woefully mistaken for a very simple reason. Section 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 Section 41(2)(c). In fact the list of rights that under the Proposed New Constitution that can be denied members of the Defense Forces and the Police Force is much broader. It includes the freedoms of privacy, association, assembly, demonstration, picketing, petition, economic and social rights as well as the rights of arrested persons.

I am not sure why Mr. Ngunyi decided to ignore the express provisions of Section 24(5) and only refer to the guarantee to form trade unions granted to every Kenyan under the much later Article 41(2) (c). However, I do sure read mischief in the argument that our armed forces would have the right to form trade unions. Even without reading the Proposed New 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 intellectuals like Mr. Ngunyi should check their facts in the Proposed New Constitution before parroting the uninformed objections being leveled against it by politicians. If intellectuals cannot get the facts right by simply reading the Proposed New Constitution, then I can see where Mr. Ngunyi’s predictions of gloom in the referendum come from.

So, let me go to Mr. Ngunyi’s second objection. Mr. Ngunyi argues that his no vote on the Proposed New Constitution is a vote for stabilization reforms. The claim here is that Kenya needs stability and that this is the path of peace and courage. In effect, Mr. Ngunyi’s argument therefore is that the Proposed New Constitution is a path to chaos and fear. Again Mr. Ngunyi is mistaken. Constitutional reforms are part of the Agenda 4 items in the Kofi Annan Agreement of March 2008. Agenda 4 items in addition include long-term issues relating to land reform, poverty, inequality and regional imbalances. These were some of the underlying reasons for post-election violence in 2008 as agreed by both President Kibaki and Prime Minister Raila. The Proposed New Constitution lays down a basic framework for addressing these long terms issues by introducing a system of devolution in which 41 Counties with independent authority will be established. A National Land Commission with powers to set the upper and lower limits of private land holding is established as well. These in my view are 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. Kenyans I believe have by advocating for this Constitution mustered the courage to fundamentally alter our governance structures in ways that begin to address our most persistent inequalities. By advocating against the Proposed New Constitution, Mr. Ngunyi in essence wants to preserve the current status quo – inconsistently with the promise that addressing Agenda 4 items is the best way of guaranteeing the path of peace and courage he advocates.

Last, Mr. Ngunyi argues that the Proposed New Constitution establishes a powerful and pure Presidency. This is also very misleading and very inaccurate. Especially inaccurate is the claim of a powerful President. Here is why. 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; High Commissioners and Ambassadors. The President’s power of appointment of judges is subject to a recommendation by a newly empowered Judicial Service Commission. In addition, the Proposed New 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 and gender. Further, the President can no longer unilaterally direct national resources to only one part of the Country. The Proposed New Constitution provides for an Equalisation Fund out of which basic services in marginalized areas will be paid for. A Commission on Revenue Allocation will ensure the equitable allocation of revenue.  Further, a new powerful legislative chamber, the Senate, is charged with the primary legislative functions with regard to matters that fall within the Counties rather than at the National Level. These few examples demonstrate the extent to which the powers of the Presidency are kept in check.

In addition, for a person to be elected, he or she President must garner more than half of all votes cast and at least 25% 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. Such a President is hardly the kind of imperial President Kenya has had since independence. So even on this score, Mr. Ngunyi is again skeptical that the people of Kenya have at last a Constitution they can support to lay the foundation for a new inclusive future – a future where the politics of deception should end. If Mr. Ngunyi was to honestly let us know what his true fears are, I am sure that they would be very different from the ill-informed excuses he has so ill-advisedly advanced for voting against the Proposed New Constitution.

There are certainly may be contentious issues raised depending on one’s perspective in the Proposed New Constitution. However that is a different matter – none of the issues Mr. Ngunyi raises is a sound reason for voting against the Proposed New Constitution. Kenya is not ready for more piecemeal pre-electoral reforms. In addition, Mr. Ngunyi should note that there is no other constitution making exercise in the world that has been as inclusive and participatory as the one in Kenya over the last several years. What we have therefore in the Proposed New Constitution is the product of much input and refinement. Kenyans should unreservedly support it.

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