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Yasin Abu Bakr Argwings-Kodhek
October 30 at 9:28am
This thing called the constitution. Why is it a problem?
An old Jewish saying goes ‘all things being from the law, all things stem form the law’. Therefore if we have bad laws we have stagnated development. We have corruption. We have unemployment. We have impunity. We have abuse of human rights. We have a poor democracy.
Is the current Kenya constitution bad? Yes it is. Why?
The Kenyan constitution was crafted at the Lancaster House Conference prior to independence. This constitution devolved power and checked power along the line of the British Westminster system which was essentially a parliamentary system.
The presence of former Federal Judge Thrugood Marshall (famous for his victory in Brown vs. Board of Education, which desegregated institutions of learning in the United States in 1954) began the process of a disjointed constitution. Marshall participated at the talks as an advisor to KANU at the invitation of Thomas Joseph Mboya. Mboya a keen reader and watcher of the American political system was not for the parliamentary system and favoured and imperial presidency similar to the US Presidency. When the Lancaster House constitution was written, there were clear signs of Marshall and Mboya influence, the most potent-the Senate. It was after independence that this influence was to be most felt.
Quickly there was a drive to make Kenya a republic. In so creating the republic the opposition had to fold. This was done through bribery and cajoling. Cash and land (yes land was a great tool). Any constitutional changes required a 2/3rd majority in the House of Representative (notice how it had the name of the US equivalent and not the House of Commons the British equivalent) and a 75% majority in the Senate. The greatest beneficiaries initially of settler land purchased by the Kenya government against the loan given by the UK government were the Senators. The Senate had to fold. Once this was achieved the majimbo constitution as it was called began to be taken apart. This process concluded in 1982 at the hands of Mboya’s pal Attorney-General Charles Mugane Njonjo.
As Minister for Justice and Constitutional Affairs Mboya not a trained lawyer or jurist went about taking apart the constitution making amendments that made the presidency akin to the position of the Queen or the departing Governor-General, his aim an imperial presidency, yet he overlooked two essential areas.
First the separation of powers that is inherent in the US Constitution was quickly whittled away. Many people criticise Kenyatta as too authoritarian and Moi after. I disagree with the powers they had they could have done much more. Second he did not dismantle the parliamentary system. Historians have said that Mboya didn’t see the danger because he intended to be the next occupant of the office of president and then overhaul the constitution completely or that because he lacked legal training he didn’t know what to do. The other question is why didn’t the two most eminent members of the cabinet that were lawyers Attorney-General Charles Njonjo and C.M.G Argwings-Kodhek both close Kenyatta confidants interfere and propose amendments to Mboya or in parliament. Many believe that Njonjo saw the potential for the consolidation of power in a disjointed system and that Argwings-Kodhek did oppose amendments in the house but only half-heartedly having teamed up so closely with the Kiambu mafia that he was allowing Mboya to tie the noose around his own neck.
By the time Mboya was done he had created a constitution where the president, is the law and all things stem from that law i.e. the PRESIDENT.
Many argue that we should devolve power. That we should decongest power from this centre. I argue that we have been having the wrong argument for the last 15 years. We need as Paul Muite and Mutahi Ngunyi have previously noted to go back to the 1960’s. Simply should we have a presidential or parliamentary system with strict checks and balances. By removing the confusion of the hybrid we may just remove the attraction of the presidency. In so doing we must look at tribalism.
Our constitution if properly written would say similar to the US Constitution, ‘we the people of Kenya coming together as diverse ethnic groups do hereby resolve……………………’.
When the Europeans cut up Africa they did what they themselves were unwilling to do, have more than one tribe in one country, very rarely allowing more than two languages in one nation. They fought wars to ensure this. In Kenya today we are 48 diverse communities yet the reigns of power have remained unashamedly in the hands of two ethnic communities who have guarded their privilege ruthlessly. Any new constitutional dispensation may want to consider an upper house called the House of Tribes in which each tribe elect two members. 48 provinces and no districts. An Electoral College that ensures the end of tribes (or a group of tribes) domination through individual tribal numbers and not countrywide support and restricting the number of positions the Chief Executive and other executive office holders can appoint from their own tribes. This would remove the current anomaly where the President is from one tribe and the Chief Justice (no matter how qualified he may be) from the same tribe.
If we are to make a constitution it may be time that one is drafted outside of the corridors of power and then shoved down the throats of those in power.
That’s just my opinion, what do you think?
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