Post by Anyang Nyongo OpinionEd on Nov 11, 2005 7:28:53 GMT 3
A No verdict on the Wako Draft is the only option
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By Anyang Nyong’o
On November 21, Kenyans will have the first opportunity since Independence to cast their votes at a referendum that seeks to introduce a new Constitution. Kenyans have for a long time wanted to have a new, more democratic constitution as the foundation for the laws of our society.
Our desire has always been that a new constitution should have been made by Kenyans for Kenyans, that it should have established broad principles of democratic governance that should help us build a strong and prosperous nation which is democratic, governed by the rule of law, respecting individual and people’s rights and having sound institutions of governance with separation of powers. We also wanted a democratic president who could leave the daily running of government to a Prime Minister with sound support in Parliament, and that devolved power to the grassroots levels would be real and developmental.
In almost all these major issues, the Wako Draft is a great disappointment.
As things stand today, the Wako Draft is not only ambiguous in several clauses; it even contradicts itself every now and again. The issue of what happens to the provincial administration, while it may seem a purely practical matter, is a case in point where deliberate executive misinterpretation is already casting doubt on the intention of the constitution makers.
The president is on record as saying that nothing will happen to chiefs once the constitution is passed. He then later said that the chiefs will be deployed to undertake other duties within government. Minister John Michuki went further to say that only he knows what will happen to the provincial administrators; they should wait for letters from him. Michuki, quite deliberately, did not want to discuss the provisions of the constitution; he was more interested in stating how he would use executive power to sort out any doubts in people’s minds regarding the provincial administration.
It now looks quite clear that the making of the Kenyan constitution has been put through a process where fewer and fewer people – who happen to be "the inside persons" in the present ruling elite - have had greater and greater say on what Kenyans will finally vote for on November 21st. Only those MPs "who are friendly to the government" were made privy to the details of the draft as it came nearer to being released for the referendum.
If you vote for this Draft, argued the Yes potentates from Western Province, then the Luhyiahs have a chance to ascend to the Presidency! What about devolution of power: can it be accomplished in the interest of the Luhyiahs without a Luhyiah potentate being guaranteed ascent to the presidency first? Such questions, and the many urgent tribulations that affect all ordinary Luhyias, and indeed all ordinary Kenyans, unfortunately do not seem to matter to these people.
It is interesting that in Central Province the Yes campaigners are promoting the rather absurd idea that if the No win, Raila will take away the Presidency from Kibaki. As far as the law is concerned, if the Wako Draft is rejected, the present Constitution will still be in force and Government will continue normally. Since the same government should still be interested in a better constitution for Kenyans, it is right to assume that it will now be better prepared to listen to the voices of reason in seeking better constitutional dispensation for the people of Kenya. One other issue that the Yes campaigners do not seem to be addressing with candor is the matter of amending the Constitution. The people who framed the Bomas Constitution wanted a stronger Legislature in consultation with the Regional Assemblies to guide the process of amending the Constitution. The makers of the Wako Draft want a Parliament, already dominated by the Executive through ministerial appointments, to have a say in an amendment process made prohibitive by its complexity and cost. In this regard, the Yes campaigners have been so anxious to promote an authoritarian presidency that they have openly denied the legislature and political parties their rightful role in a democratic process.
The Yes campaigners were at least honest enough to let Kenyans know what they think of political parties in a paid advertisement in the Kenyan papers some weeks ago. They said that parties, for all intents and purposes, cannot be relied upon to guarantee democracy in Kenya. In the same advertisement, however, they went on to argue that the new constitution will fund political parties. The logic of their argument is therefore that this Wako Draft will promote entities that will be working against democracy, hence Kenyans should not approve of it.
The Wako Draft even goes much further in the process of weakening political parties and making them redundant in Parliament. While the Bomas Draft envisaged a Prime Minister who would be the leader of the majority party in Parliament and would therefore effectively lead government business in the House, the Wako Draft gives the President power to appoint anybody as Prime Minister. In other words, even the leader of the Opposition could, constitutionally, be appointed Prime Minister by the President.
If we ask ourselves the question: what were the intentions of the founding fathers and mothers of the Wako Draft when they made this provision? The answer must obviously be to make it easy for the President to have a poodle for a Prime Minister in the House!
In 1997, during the IPPG reforms that were undertaken to avert a showdown between the opposition and the Government then, we removed the power of nominating Members of Parliament from the President and gave this power to political parties. The Wako Draft has taken these powers back to the President through the back door: the President can nominate up to 20 per cent of the Cabinet from outside Parliament and then make these ministers ex-officio members in the House.
When it comes to having Cabinet Ministers who are not directly elected by the people Parliament should rely on proportional representation from political parties if it is not to be smothered by the presidency. The intention of this provision in the Wako Draft is simply to strengthen the presidency unfairly against the legislative branch of government in our system which has largely remained modeled after Westminster.
My verdict on November 21, must definitely be NO.
* The writer is MP, Kisumu Rural
--------------------------------------------------------------
By Anyang Nyong’o
On November 21, Kenyans will have the first opportunity since Independence to cast their votes at a referendum that seeks to introduce a new Constitution. Kenyans have for a long time wanted to have a new, more democratic constitution as the foundation for the laws of our society.
Our desire has always been that a new constitution should have been made by Kenyans for Kenyans, that it should have established broad principles of democratic governance that should help us build a strong and prosperous nation which is democratic, governed by the rule of law, respecting individual and people’s rights and having sound institutions of governance with separation of powers. We also wanted a democratic president who could leave the daily running of government to a Prime Minister with sound support in Parliament, and that devolved power to the grassroots levels would be real and developmental.
In almost all these major issues, the Wako Draft is a great disappointment.
As things stand today, the Wako Draft is not only ambiguous in several clauses; it even contradicts itself every now and again. The issue of what happens to the provincial administration, while it may seem a purely practical matter, is a case in point where deliberate executive misinterpretation is already casting doubt on the intention of the constitution makers.
The president is on record as saying that nothing will happen to chiefs once the constitution is passed. He then later said that the chiefs will be deployed to undertake other duties within government. Minister John Michuki went further to say that only he knows what will happen to the provincial administrators; they should wait for letters from him. Michuki, quite deliberately, did not want to discuss the provisions of the constitution; he was more interested in stating how he would use executive power to sort out any doubts in people’s minds regarding the provincial administration.
It now looks quite clear that the making of the Kenyan constitution has been put through a process where fewer and fewer people – who happen to be "the inside persons" in the present ruling elite - have had greater and greater say on what Kenyans will finally vote for on November 21st. Only those MPs "who are friendly to the government" were made privy to the details of the draft as it came nearer to being released for the referendum.
If you vote for this Draft, argued the Yes potentates from Western Province, then the Luhyiahs have a chance to ascend to the Presidency! What about devolution of power: can it be accomplished in the interest of the Luhyiahs without a Luhyiah potentate being guaranteed ascent to the presidency first? Such questions, and the many urgent tribulations that affect all ordinary Luhyias, and indeed all ordinary Kenyans, unfortunately do not seem to matter to these people.
It is interesting that in Central Province the Yes campaigners are promoting the rather absurd idea that if the No win, Raila will take away the Presidency from Kibaki. As far as the law is concerned, if the Wako Draft is rejected, the present Constitution will still be in force and Government will continue normally. Since the same government should still be interested in a better constitution for Kenyans, it is right to assume that it will now be better prepared to listen to the voices of reason in seeking better constitutional dispensation for the people of Kenya. One other issue that the Yes campaigners do not seem to be addressing with candor is the matter of amending the Constitution. The people who framed the Bomas Constitution wanted a stronger Legislature in consultation with the Regional Assemblies to guide the process of amending the Constitution. The makers of the Wako Draft want a Parliament, already dominated by the Executive through ministerial appointments, to have a say in an amendment process made prohibitive by its complexity and cost. In this regard, the Yes campaigners have been so anxious to promote an authoritarian presidency that they have openly denied the legislature and political parties their rightful role in a democratic process.
The Yes campaigners were at least honest enough to let Kenyans know what they think of political parties in a paid advertisement in the Kenyan papers some weeks ago. They said that parties, for all intents and purposes, cannot be relied upon to guarantee democracy in Kenya. In the same advertisement, however, they went on to argue that the new constitution will fund political parties. The logic of their argument is therefore that this Wako Draft will promote entities that will be working against democracy, hence Kenyans should not approve of it.
The Wako Draft even goes much further in the process of weakening political parties and making them redundant in Parliament. While the Bomas Draft envisaged a Prime Minister who would be the leader of the majority party in Parliament and would therefore effectively lead government business in the House, the Wako Draft gives the President power to appoint anybody as Prime Minister. In other words, even the leader of the Opposition could, constitutionally, be appointed Prime Minister by the President.
If we ask ourselves the question: what were the intentions of the founding fathers and mothers of the Wako Draft when they made this provision? The answer must obviously be to make it easy for the President to have a poodle for a Prime Minister in the House!
In 1997, during the IPPG reforms that were undertaken to avert a showdown between the opposition and the Government then, we removed the power of nominating Members of Parliament from the President and gave this power to political parties. The Wako Draft has taken these powers back to the President through the back door: the President can nominate up to 20 per cent of the Cabinet from outside Parliament and then make these ministers ex-officio members in the House.
When it comes to having Cabinet Ministers who are not directly elected by the people Parliament should rely on proportional representation from political parties if it is not to be smothered by the presidency. The intention of this provision in the Wako Draft is simply to strengthen the presidency unfairly against the legislative branch of government in our system which has largely remained modeled after Westminster.
My verdict on November 21, must definitely be NO.
* The writer is MP, Kisumu Rural