Why I Opposed the New Constitution, High Wage Bill

The democratic  space that come along with the parliamentary system within the common wealth countries provide for checks and balances for the executive and that includes Kenya as a member state that roots for proper laws. The recent development in the way the committee of the houses of parliament in Kenya is the latest test of the system that Kenyans endorsed close to 2 and half years ago.

For the record, I opposed the current constitution due to various legal platforms that the makers of the constitution put forward.

 The manner at which the so-called separations of powers were articulated in the new supreme law left a weakened legislature that held the executive diety. For me I argued that for Kenya to have a working system we were deemed to have a lean government but that lean government did not only mean the number of Ministers or did not mean the hefty number of legislators that has increased the wage bill and the burden now lies with the mama mbogas and the hustler in the street to contain the new offices.

I recall No- camp leader William Samoei Ruto once said that the constitution presented to Kenyans had much discrepancies and was meant to lead to massive conflict of interest once it was put into working. I believe Kenyans were blinded by article 81 (b) which provided for ‘not more than two-thirds of the members of elective public bodies shall be of the same gender’

For the purposes of records the clause that to me I felt did not serve right was the of increment of the parliamentary seats from 210 to 290 and further creating another house- the senate with 47 elected senators and 12 nominated. Under article 89[1] the law provided for 290 elected seats up from 210 in the repealed law a matter that to me, I feel was unnecessary.  The inclusion of the 47 women representatives at least now Kenyans see they had no purpose for the country and the constitution was not there to represent the cries of the common Kenyans but was meant to increase the wage bill that Kenyans were fighting to contain.

Of the recent past the parliament has actively engaged in matters that were meant to overthrow the law that Kenyans voted for in large numbers by trying to disband the SRC that came in to convince Kenyans that the wage bill can remain at the same level and therefore Kenyans will not be required to dig deep to pay the legislators.

The petition before the floor of the National Assembly does not only undermine the supremacy of the Supreme law but also seeks to overburden the mama mbogas and the so-called hustlers in the streets. Sometimes when watching the leader of Majority Adan Duale call Kenyans ‘Thieves’ I fall aback. Actually I do understand what he means but is it necessary? To me its not and I still await him to apologise to us.

Kenyans, at least those who voted for the yes ‘enjoy’ among other things, devolution. Former Prime Minister Raila Odinga is a man that I hold in high esteem. He is a champion of devolution and I agree that devolution was the original idea of the Kenya we had 50 years ago. My history told me that it took 2 years to negotiate for devolution before the Lancaster constitution was passed and later what happened was and will remain written in people’s hearts.

Kenya was supposed to gain independence in 1961, of course I stand to be corrected, but Uganda surpassed us in 1962 and we got it in 1963. The reasons are well written in the Kenya’s history and what followed is what I term as political theatrics. The disbandment of the Regional governments in 1967, a year after Jaramongi Oginga Odinga differed with Mzee Kenyatta was the dire climax of how unconstitutional behavior can lead to conflict of interests.

I grew up with a political mother. She used to give me the history and to some extend the story. She could tell me how she knew the Kenyatta times… mmmh history repeats it self, Am also in the Kenyatta times too. The only difference was her Kenyatta was old and mine is young. Actually he is as old as Kenya hence a jubilee Kenyatta.

I think some legal minds need to jet in here; we have county commissioners in office?  Yes we do. Where the 2010 constitution is is it provided for that office? The only place I see the term Provincial Administration is under the sixth schedule article 17 which says ‘ Within five years after the effective date, the national government shall restructure the system of administration commonly known as the provincial administration to accord with and respect the system of devolved government established under this Constitution.’

At least I do not require a legal mind to breakdown the statement ‘Within five years after the effective date’ because if I use the simple natural knowledge, the effective date of the new constitution was on March 4 when Kenyans went to the polls and if you dispute I take you back to August 27 2010 when his Excellency President Mwai Kibaki Humbly Promulgated the new constitution at Uhuru park and was even witnessed by the ICC indictee Omar El Bashir.

Last year I had heated argument with a legal scholar Aluku silas on the same topic though my points were too shallow and I was under exposed in the broad spectrum of political world. I do remember his argument was the same as mine now.

According to the legal scholar Silas Aluku, “The question of law that arises is whether or not restructuring as contemplated by sec 17 abolishes the system of provincial administration? Looked at in the context of the entire constitution and specifically so the substantive part thereof the said system of PA is not provided for and even sec 17 itself does not contemplate giving life to it.”

Surely is this the Kenya that you dreamt of? By using ‘you’ I refer to those who voted in favour of the referendum question. I know I have already stepped on very many toes of legal minds, but my point is I based my arguments not for or against but what I see in the current legal setup.

Finally, Kenyans expected a lot in the Supreme Court and the ruling did not only generate what I would call voter apathy but also made Kenyans for the first time do the worst crime I was told about by the lecturer who taught me Media and Ethics Law in Mount Kenya University, the contempt of court. In Swahili I remember my able senior colleague Franklin Macharia put it as Kudharau Korti.

Calling Supreme Court, ‘Mutunga Court’ was way too low for the Kenyans to describe the court which was created by the same constitution they voted for.  We under article 163 created a supreme court not a ‘Mutunga Court’ and the bearer of the authority of the court shall be based on the power vested in court. The manner at which the court delivered its ruling will forever haunt the court records as having to be the worst ruling I have ever heard. The reasons being Kenyans had expectations that they were to listen to word by word as the judges read the ruling. If President Kenyatta could read 30 page inauguration speech to a stadium full of people then 6 judges could have read the ruling to Kenyans because up to date many Kenyans argue on what they have never taken their time to read.

I think someone told me that if you want to hide an African something, do it in a book and the fellow will never find it. Many Kenyans were glued to the television sets during the entire petition hearing but very few have read the petition ruling.

I took my time and read the 113 page ruling however, I disagree with the judges on the issue of depriving people their power by accepting the petition.

Of interest is the paragraph 226 and 227. [226] says “In this inaugural Supreme Court which is barely two years old, and which is at the centre of the governance processes established under the Constitution of Kenya, 2010, it is the first time the Judges are called upon to declare their perception of their role in a fundamentally political-cum-constitutional process. It is particularly significant that the organ which is the subject of dispute is the most crucial agency of the Executive Branch, namely the Presidency. The new Constitution will not be fully operational, without the Presidential office being duly filled, as provided by the Constitution and the ordinary law.”

The paragraph was followed by 227 which say “But the Constitution not only represents a special and historic compact among the people; it expressly declares all powers of governance to emanate from the people, and to be for service to the people. Article 1 of the Constitution thus provides:

“(1) all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.

“(2) The people may exercise their sovereign power directly or through their democratically elected representatives.”

And finally [228]” What is now before the Court is a case in which the people, as makers and main beneficiaries of the Constitution, have employed the prescribed machinery, and cast their votes, in exercise of their political will to elect the leading member of the Executive Branch.”

My main fair question lies here, why did the sovereignty of the people of Kenya come in here in the presidential petition? I may not really require an answer but what lies there was the fact that the Kenyan people were coerced by leaders to vote for a document that was impractical and it may take the next 50 years to amend the constitution.