Post by Kibe Mungai on Oct 24, 2005 8:03:18 GMT 3
Wako Draft Promises Fair ConstitutionalOrder
By Kibe Mungai
Sunday Standard
Sunday October 23, 2005
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As more Kenyans read and understand the Wako Draft, it is becoming apparent that, despite various flaws, the Proposed New Constitution is strong on core issues. It disperses State power and devolves responsibilities to the people so effectively that dictatorship would no longer haunt our country if Kenyans adopted it. Indeed, if only Orange leaders could take collective responsibility for the weaknesses of the Wako Draft introduced at Bomas it would become apparent that it presents a golden opportunity to usher in a fairer democratic constitutional order.
Given that the Wako Draft is at least 90 per cent a replica of the Bomas document, Orange supporters who favour the latter are so hard-put to critique it that often, they yield to the temptation of criticising provisions that they supported at Bomas and in Naivasha.
The ideologues of the Orange movement have lately begun to shift their criticism from the actual contents of the proposed constitution and resorted to peddling fears and conjuring up nightmares about the consequences of a Banana victory.
Their criticism hinges on the argument that transitional arrangements in the Wako Draft are so hopelessly deficient that the new constitutional order would be unworkable.
Pro-Orange lawyers have floated several false, wild, distorted and alarmist arguments. The main argument relates to unexpired terms of the incumbent President and MPs and is actually premised on the accepted democratic principle that the chief executive and MPs must derive their mandates from the people.
It has been argued that while Section 3 of the Sixth Schedule expressly states MPs shall serve only their "unexpired term", Section 6(1) thereof states that: "The persons occupying the offices of the President and Vice President, immediately before the effective date shall continue to serve as President and Deputy President, … until the first elections held under this Constitution".
It requires no genius to explode the lie that section 6(1) gives Kibaki an illegitimate five-year term in office. Three quick reasons will suffice.
This argument is mischievous and in bad faith because whereas section 6(1) relates to the serving President and Vice President, the critics only talk about an extra term for Kibaki and not for Moody Awori, as though it would be fine for the latter to obtain an extra term as Deputy President without being elected directly by the people.
The meaning of section 6(1) is being distorted to justify the absurd conclusion that it gives Kibaki an extra five years in office. Section 6(1) does not actually say the President shall automatically obtain an uncontested term under Proposed New Constitution let alone a five-year term. For section 6(1) to mean what pro-Orange lawyers are asserting, its wording would have to be different.
In 1964, Jomo Kenyatta became President under the Republican Constitution without elections because the first constitutional amendment of 1964 provided, inter alia, that the President of Kenya was to be "the person who, immediately before December 12, 1964, holds the office of Prime Minister under the Constitution". Words to that effect would have to be used in the Wako Draft for it to have that meaning.
The other significant falsehood is the assertion that if we passed the Wako Draft, the next Presidential Election would be in 2010. This claim contradicts the first lie because it presupposes that the President and MPs would obtain a five-year term if ‘Yes’ wins, while the first lie is based on the "reasoning" that only Kibaki would get a new term.
Unlike the Wako Draft, under the current Constitution, the President and Vice President must be elected MPs. Since the President and VP would continue to serve, as MPs under section 6(1) of the Sixth Schedule, there should be no doubt that they would be serving the remainder of their terms obtained under the current Constitution.
Moreover, the words "until the first elections held under this Constitution" in section 6(1) leave no doubt that until an election is held under the proposed Constitution, the President and his deputy cannot obtain electoral terms under it. The foregoing reasoning is vindicated upon reading Sections 3 and 6 of the Sixth Schedule together.
Section 3 provides as follows: "The National Assembly existing immediately before the effective date shall continue as Parliament for the purposes of this Constitution for its unexpired term, and shall within six months of the effective date, revise Standing Orders in accordance with this Constitution".
Under Section 30 of the current Constitution, Parliament means the National Assembly and the President. Given that under section 59(4) of the current Constitution, Parliament, unless sooner dissolved, shall stand automatically dissolved on February 18, 2008, being the end of the five-year term of the current House, there should be no doubt that a General Election under the new constitution will take place by June 2008.
Like other MPs, on February 18, 2008, the President and his deputy shall complete their parliamentary term and so a General Election will be held under the Proposed New Constitution.
Section 6(2) of the Sixth Schedule will come into effect thereby giving a prime minister and two deputy premiers.
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Kibe Mungai is an advocate of the High Court of Kenya. He helped People Against Torture (PAT).
By Kibe Mungai
Sunday Standard
Sunday October 23, 2005
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As more Kenyans read and understand the Wako Draft, it is becoming apparent that, despite various flaws, the Proposed New Constitution is strong on core issues. It disperses State power and devolves responsibilities to the people so effectively that dictatorship would no longer haunt our country if Kenyans adopted it. Indeed, if only Orange leaders could take collective responsibility for the weaknesses of the Wako Draft introduced at Bomas it would become apparent that it presents a golden opportunity to usher in a fairer democratic constitutional order.
Given that the Wako Draft is at least 90 per cent a replica of the Bomas document, Orange supporters who favour the latter are so hard-put to critique it that often, they yield to the temptation of criticising provisions that they supported at Bomas and in Naivasha.
The ideologues of the Orange movement have lately begun to shift their criticism from the actual contents of the proposed constitution and resorted to peddling fears and conjuring up nightmares about the consequences of a Banana victory.
Their criticism hinges on the argument that transitional arrangements in the Wako Draft are so hopelessly deficient that the new constitutional order would be unworkable.
Pro-Orange lawyers have floated several false, wild, distorted and alarmist arguments. The main argument relates to unexpired terms of the incumbent President and MPs and is actually premised on the accepted democratic principle that the chief executive and MPs must derive their mandates from the people.
It has been argued that while Section 3 of the Sixth Schedule expressly states MPs shall serve only their "unexpired term", Section 6(1) thereof states that: "The persons occupying the offices of the President and Vice President, immediately before the effective date shall continue to serve as President and Deputy President, … until the first elections held under this Constitution".
It requires no genius to explode the lie that section 6(1) gives Kibaki an illegitimate five-year term in office. Three quick reasons will suffice.
This argument is mischievous and in bad faith because whereas section 6(1) relates to the serving President and Vice President, the critics only talk about an extra term for Kibaki and not for Moody Awori, as though it would be fine for the latter to obtain an extra term as Deputy President without being elected directly by the people.
The meaning of section 6(1) is being distorted to justify the absurd conclusion that it gives Kibaki an extra five years in office. Section 6(1) does not actually say the President shall automatically obtain an uncontested term under Proposed New Constitution let alone a five-year term. For section 6(1) to mean what pro-Orange lawyers are asserting, its wording would have to be different.
In 1964, Jomo Kenyatta became President under the Republican Constitution without elections because the first constitutional amendment of 1964 provided, inter alia, that the President of Kenya was to be "the person who, immediately before December 12, 1964, holds the office of Prime Minister under the Constitution". Words to that effect would have to be used in the Wako Draft for it to have that meaning.
The other significant falsehood is the assertion that if we passed the Wako Draft, the next Presidential Election would be in 2010. This claim contradicts the first lie because it presupposes that the President and MPs would obtain a five-year term if ‘Yes’ wins, while the first lie is based on the "reasoning" that only Kibaki would get a new term.
Unlike the Wako Draft, under the current Constitution, the President and Vice President must be elected MPs. Since the President and VP would continue to serve, as MPs under section 6(1) of the Sixth Schedule, there should be no doubt that they would be serving the remainder of their terms obtained under the current Constitution.
Moreover, the words "until the first elections held under this Constitution" in section 6(1) leave no doubt that until an election is held under the proposed Constitution, the President and his deputy cannot obtain electoral terms under it. The foregoing reasoning is vindicated upon reading Sections 3 and 6 of the Sixth Schedule together.
Section 3 provides as follows: "The National Assembly existing immediately before the effective date shall continue as Parliament for the purposes of this Constitution for its unexpired term, and shall within six months of the effective date, revise Standing Orders in accordance with this Constitution".
Under Section 30 of the current Constitution, Parliament means the National Assembly and the President. Given that under section 59(4) of the current Constitution, Parliament, unless sooner dissolved, shall stand automatically dissolved on February 18, 2008, being the end of the five-year term of the current House, there should be no doubt that a General Election under the new constitution will take place by June 2008.
Like other MPs, on February 18, 2008, the President and his deputy shall complete their parliamentary term and so a General Election will be held under the Proposed New Constitution.
Section 6(2) of the Sixth Schedule will come into effect thereby giving a prime minister and two deputy premiers.
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Kibe Mungai is an advocate of the High Court of Kenya. He helped People Against Torture (PAT).