Post by Ed on Nov 21, 2005 21:52:55 GMT 3
BRIEF OVERVIEW OF THE PROPOSED CONSTITUTION
Forget the politics. What is actually in the proposed constitution? Below is a hard look at some of the provisions in the proposed constitution.
Forget oranges and bananas, let the facts speak for themselves.
Overview
The general level of drafting is so badly crafted that only two conclusions can be reached. Firstly, that drafting was done by an inept group of draftsmen or that a highly professional group of draftsmen have been instructed to craft a document of Machiavellian ambiguity and subterfuge.
When one considers the professionals involved, one is left with the alarmingly conclusion that the latter is true.
This will lead to two very clear and disturbing ends.
Firstly, the courts will be swamped with litigation, as people seek interpretation of the vagaries of the constitution. Secondly, the government will become the beneficiary of a frightening amount of power, which will not be apparent to the lay person on casual reading of the constitution.
Even those foreign NGOs (who neither pay tax nor own land in Kenya) and who have pushed for this constitution from the beginning, are finally realising the monster that they have created.
Some fundamental concerns:
Whilst, politicians have being arguing about the clear problems with the proposed public service, district governments, religious courts and the election of the president and the prime minister.
Numerous fundamental problems within the proposed constitution appear to have been overlooked.
Here are a few of them:
The proposed constitution will bind future generations to the agenda of this government.
Why? Can’t we just change it if doesn’t work?
Changing the proposed constitution is virtually impossible. Three options exist to change the constitution.
1. Changing of the legislation that arises from the constitution (not the constitution itself)- by a politician
Under Article 281, any bill seeking to amend the constitution may only deal with legislation arising from the constitution, and not the constitution itself.
In order to change just the laws arising out of the constitution, the following procedure must be followed:
The Bill must be presented to parliament for first reading;
It then has to wait 90 days before a second reading;
If it passes (i and ii), 2/3 rds of parliament will have to vote in its favour at both the second and third reading.
(Bearing in mind that the constitution comes to force with only a 50% majority but now to change it you need over 66%)
2. Changing the constitution itself- by a politician
The procedure as set out under Article 282 (5):
The Bill presented to parliament for a first reading;
It then has to wait 90 days before the second reading;
If it passes (i and ii), 2/3 rds of parliament will have to vote in its favour at both the second and third reading;
Have a referendum (however there is no time limit for the President to instruct the Electoral and Boundaries Commission to initiate a referendum!!! He could take years or not do it all)!!
Pass a referendum by a majority;
3. Changing the constitution itself- by a non politician
We must collect a million signatures;
Their signatures must all be verified;
There is no time limit of this verification;
Apply to the Electoral and Boundaries Commission who shall pass it to the district assemblies;
The district assemblies must approve it (there is no deadline for them so in theory they could take an indefinite amount of time to do so);
A majority of the district assemblies need to approve the motion (again no obligation for them to reply within any time frame);
If it has been approved then go back to part (1 (i) above and all the subsequent steps).
Then after parliament has approved it, the President sends it back for a referendum (Article 282 (5))!!!! Again, there is no time limit for the President to instruct the Electoral and Boundaries Commission to initiate a referendum!!! He could take years or not do it all!!
This means the President can stop any change of the constitution.
As one can see, with the inbuilt administrative and legislative barriers and frustrations proposed it will be virtually impossible for the constitution to be ever changed.
Why not go to court for change?
Article 2 (2) states categorically that “the validity or legality of this constitution is not subject to challenge by or before any court”.
This means that what this government’s agenda (right or wrong), contained in the proposed constitution, cannot be challenged by any person or court….ever.
OTHER VERY WORRYING SPECIFIC ELEMENTS IN THE PROPOSED CONSTITUTION:
Land Issues
Summary
Fundamentally, the proposed constitution removes the sanctity of title and the principles which provided citizens with the security of private ownership that Kenyans have enjoyed since independence.
Its possible effects have colossal implications for all landowners no matter how small or large.
How ?
The proposed constitution proposes new definitions of land:
Under the Article 79 (2) all land in Kenya will now become “public, community or private”.
Under Article 80 (1) (g) “Public Land” includes: “..water catchment areas,….animal sanctuaries”
What are the implications of this?
This means that if you own a shamba which is in a water catchment area or if you own land which has wildlife on it (bearing in mind that neither are defined in the constitution), the government is not only entitled to convert your private land into public land, but under Article 289, your land becomes public land with immediate effect the day the proposed constitution is adopted.
The possibility for abuse is enormous.
The government’s right to seize your land:
Under section 80 (1) (m) public land also includes “any other land declared to be public land by an Act of Parliament”. Similarly, under Article 81 (2)(f), “community land” is “any other land declared to be community land by an Act of Parliament”.
What could this mean?
This would allow the government, with a mere 51% of the vote in parliament, to pass legislation to appropriate anybody’s land- irrespective of how they acquired it or the title that they have.
Under the present constitution the government may do this for specific reasons eg: defence and under section 3 they are obliged to compensate you for the same.
Under the proposed constitution, they can seize your land for any reason claiming simply that it is either Public or Community land.
In addition to this there is no provision for any compensation.
Incidentally all this purloined land would then be “administered” by the National Land Commission (Article 80 (3))- see later.
What about “community land”
Under section 81 (1) all land held by county councils, group ranches or indeed by any community shall be classified as community land (whether previously registered or not). This land will then have to await fresh legislation (Article 81 (4)) to determine who the owners of this land should be.
Deviously, the drafters have ensured that this must come into effect “within 2 years” (Fifth Schedule- Legislation to be Enacted by Parliament), i.e. before the next General Election.
This means that the government will have the opportunity to seize Group Ranches, County Council Lands etc and re-allocate them to their cronies or in order to “buy votes”, prior to the next election.
More frighteningly, under Clause 17 of Article 288 (Savings, Transitional and Consequential Provisions) all community land “shall be held by the National Lands Commission”, until communities are “identified” and their title is registered.
There is NO TIME LIMIT on this. The government could hold your group ranch, communal land etc. indefinitely….
Other Increased government powers to seize your land
Under Article 84 (1) the government …..”has the power to regulate the use of any land, interest or right in land in the interest of………land use planning or the development or utilization of property”.
What does this mean?
As the constitution does not define land use planning or the development or utilization of property, it is open to the government to seize your property for any project that it sees fit.
If a Minister or the National Land Commission wants your land, they would just have to get a Ministry to make some spurious plans for a “project” and then seize your property. There is no obligation to proceed with this proposal within a time limit or indeed to justify the proposal at all.
Equally alarmingly, there is no clear provision for compensation (unlike the present constitution).
What about the claimed rights for citizens to acquire and own property, in any part of Kenya, under Article 58
Whilst Article 58 appears to protect private land ownership, in Article 58 (1) it initially specifically excludes from protection foreigners (Article 83) and land seized for government projects (Article 84) but then in Article 58 (3)(a) it goes further and excludes all of Chapter 7 (i.e. all the proposed provisions that deal with the proposed land policy) or land that is seized for a public purpose or interest!
The conclusion being that there would no longer be an absolute right to acquire and own property in any part of Kenya.
What about the entitlement to compensation that we have under the current constitution?
The only compensation that is clearly set out in the proposed constitution is under Article 58 3) (b), which allows for compensation where land is appropriated for a “public purpose” or “in the public interest”.
Alarmingly, there is no mention of compensation for the numerous other strategies set out in Chapter 7, which allow the State to seize land.
Other frightening powers of the National Land Commission
Powers of a court
Under Article 85 (g) the Commission is charged with ensuring “appropriate redress” on all land injustices both present and historical. The National Land Commission becomes a court in its own right.
There is no limit in time as to what constitutes historical, it could be defined as last year or 200 years ago.
Would the Sultan of Zanzibar’s survivors be able to claim back the land they lost to the British and which subsequently became Kenyan or the Ugandan’s those parts of Kenya they claim as theirs historically, or the Maasai all land in the Rift Valley settled by other tribes, or indeed those tribes who occupied the land prior to the Maasai’s arrival?
This is a recipe for chaos.
Tax raising powers
Furthermore, under Article 87 (2) (j) the Commission can assess tax on land and premiums on property. This will allow Commission to supersede the role of the Kenya Revenue Authority and the local council.
Who determines who sits on this powerful Commission?
Article 273 (b) and (c) state it is “ …..the president (and approved by parliament-i.e. approved by his party)”.
I.e.: the very people who “seize” your land then “administer” it. The Marxist dream has arrived.
Foreigners
Under Article 83 (1) all property owned by foreigners shall become a maximum 99 year lease.
There is no compensation for the interest lost e.g.: the 900 years of 999 year lease nor are there any allowances made for encumbrances (mortgages etc) that were made with the view that properties had longer than a 99 year lease.
Furthermore, they have made no provision in the constitution for ownership by corporate entities. Corporate entities do not have a nationality, consequently it remains ambiguous whether publicly or indeed privately owned companies will forfeit their freehold tenure.
There is also no provision stating whether this 99 year lease shall be renewable and on what terms.
The signal that this sends to overseas investors, and the confidence in which they should view investing in Kenya, is worrying.
This is also in stark contrast to the freedoms that Kenyans enjoy, in other countries around the world, when it comes to purchasing property.
Matrimonial property
Under Article 86 (1) (d) there are to be provisions to protect matrimonial homes during the termination of marriage.
This would in effect mean that banks would not be able to execute a charge against a property, if the other spouse could show it was a matrimonial property.
The ramifications for the banking industry and by extension, the general population’s ability to borrow money, are potentially disastrous as banks would have virtually no property they could secure loans against and would therefore stop issuing loans.
Maximum and Minimum acreages
Under Article 86 (1) (l) parliament is required to enact legislation “to prescribe minimum and maximum land holding acreage in arable areas”. As we have seen (prior to the government’s U turn) this means that the government can prevent the sub-division of land and consequently prevent children sharing equally in their parents lands.
At the other extreme, by setting a maximum acreage of land the government is clearly stating that it intends to follow in the footsteps of Mugabe and take land as and when it seeks fit, and from whoever it decides, irrespective of whether that land was lawfully acquired.
Logistically, setting acreage limits would be unrealistic as the population is constantly changing and unless they propose changing the acreage limits every time the population changes, the concept becomes redundant.
OTHER AREAS OF CONCERN IN THE PROPOSED CONSTITUTION:
Right to Life
Article 35 (1) “states that every person has a right to life” but then goes on to state “…..except as may be prescribed in an Act of Parliament”!!!!
This means that parliament can pass any legislation that removes the right of life for any body or group as it sees fit: old, young, unborn, wrong tribe, you name it!!!
So there is no absolute right of life.
Under the present constitution the right to life is guaranteed except where a person has been convicted of a capital offence, in a criminal court. Period. No room for parliament to meddle. Not so with the proposed constitution.
State of Emergency
Under Article 75 (6), during a state of emergency, legislation may be passed which breaches the proposed Bill of Rights
This could just be acceptable until you read that there is no time limit placed on how long that legislation remains effective.
This would allow the State to introduce draconian legislation would could stay alive indefinitely.
Is there a real concern the country will grind to a halt?
In the Sixth Schedule Clause 2, it states that all current laws will remain in force but shall be modified and adapted to bring them into line with the proposed constitution from the date of the proposed constitution coming into force.
This means that every existing Act will have to be scrutinised, interpreted and ultimately referred to the courts to determine how, if at all, it should be amended and what its affect will be.
Business will grind to halt as will our courts.
What of the concern that the proposed constitution encourages civil insurrection?
Article 1 (2) states very clearly that “The people may exercise their sovereign authority either directly or through their democratically elected representatives”.
The implication here is that people can either vote for change (i.e. democratically elect their representatives) or in the alternative take direct mass action, this can legitimately be interpreted as marching on State House or Parliament and using force to remove the government.
Again, this may not have been the intention of the drafters but the problem remains that it is still in the proposed constitution.
Is it true that the proposed the constitution favours one particular tribe for the presidency?
Sadly, yes. Under Article 149 (4), in addition to receiving more than 50% of votes cast, the aspiring president must receive a minimum of 25% of votes in more than half the districts. Statistically, this means that only the largest and most wide spread tribe could ever achieve this.
Numerically, it is extremely improbable that other smaller and less widely distributed tribes could ever achieve this 25% of votes in half the districts.
What is the most frightening aspect of the proposed constitution?
The undermining of parliament’s sovereignty.
But what about all the “consequential” legislation that is proposed to ensure that the correct and appropriate systems are in place to guarantee that the constitution is applied fairly and effectively?
On a reading of the constitution and specifically of the Fifth Schedule (Legislation To Be Enacted By Parliament), 57 pieces of legislation will have to be enacted within six months to three years and 47 of these will have to be enacted within 2 years!!
Bearing in mind the miniscule pieces legislation that Parliament passes every session, this statement is preposterous….until one reads perhaps the most frightening aspect of the constitution, hidden away in Article 287 (5), which reads:
“Where parliament has not enacted legislation within the specified time……the Bill (any bill as put forward by the Attorney-General, in Article 287 (4)) shall be deemed to have been enacted…”
What does this mean?
Simply this- all 57 pieces of legislation that have not yet been passed by parliament within the prescribed time (i.e. 6 months to three years), will automatically become law when the prescribed time has passed, without parliament having ever looked at them!!! I.e. the Attorney-General and the President can ensure that all contentious Acts become law automatically without parliament’s approval.
Summary
The issue is not whether this government or successive governments would abuse these loopholes, uncertainties and defects, but that they actually exist and somebody wants them to become part of our constitution.
Whilst acknowledging that 80 % of the proposed constitution is good and proper, the 20% is so iniquitous that no Kenyan should even contemplate voting for this constitution.
As they say, the devil is in the detail.
Forget the politics. What is actually in the proposed constitution? Below is a hard look at some of the provisions in the proposed constitution.
Forget oranges and bananas, let the facts speak for themselves.
Overview
The general level of drafting is so badly crafted that only two conclusions can be reached. Firstly, that drafting was done by an inept group of draftsmen or that a highly professional group of draftsmen have been instructed to craft a document of Machiavellian ambiguity and subterfuge.
When one considers the professionals involved, one is left with the alarmingly conclusion that the latter is true.
This will lead to two very clear and disturbing ends.
Firstly, the courts will be swamped with litigation, as people seek interpretation of the vagaries of the constitution. Secondly, the government will become the beneficiary of a frightening amount of power, which will not be apparent to the lay person on casual reading of the constitution.
Even those foreign NGOs (who neither pay tax nor own land in Kenya) and who have pushed for this constitution from the beginning, are finally realising the monster that they have created.
Some fundamental concerns:
Whilst, politicians have being arguing about the clear problems with the proposed public service, district governments, religious courts and the election of the president and the prime minister.
Numerous fundamental problems within the proposed constitution appear to have been overlooked.
Here are a few of them:
The proposed constitution will bind future generations to the agenda of this government.
Why? Can’t we just change it if doesn’t work?
Changing the proposed constitution is virtually impossible. Three options exist to change the constitution.
1. Changing of the legislation that arises from the constitution (not the constitution itself)- by a politician
Under Article 281, any bill seeking to amend the constitution may only deal with legislation arising from the constitution, and not the constitution itself.
In order to change just the laws arising out of the constitution, the following procedure must be followed:
The Bill must be presented to parliament for first reading;
It then has to wait 90 days before a second reading;
If it passes (i and ii), 2/3 rds of parliament will have to vote in its favour at both the second and third reading.
(Bearing in mind that the constitution comes to force with only a 50% majority but now to change it you need over 66%)
2. Changing the constitution itself- by a politician
The procedure as set out under Article 282 (5):
The Bill presented to parliament for a first reading;
It then has to wait 90 days before the second reading;
If it passes (i and ii), 2/3 rds of parliament will have to vote in its favour at both the second and third reading;
Have a referendum (however there is no time limit for the President to instruct the Electoral and Boundaries Commission to initiate a referendum!!! He could take years or not do it all)!!
Pass a referendum by a majority;
3. Changing the constitution itself- by a non politician
We must collect a million signatures;
Their signatures must all be verified;
There is no time limit of this verification;
Apply to the Electoral and Boundaries Commission who shall pass it to the district assemblies;
The district assemblies must approve it (there is no deadline for them so in theory they could take an indefinite amount of time to do so);
A majority of the district assemblies need to approve the motion (again no obligation for them to reply within any time frame);
If it has been approved then go back to part (1 (i) above and all the subsequent steps).
Then after parliament has approved it, the President sends it back for a referendum (Article 282 (5))!!!! Again, there is no time limit for the President to instruct the Electoral and Boundaries Commission to initiate a referendum!!! He could take years or not do it all!!
This means the President can stop any change of the constitution.
As one can see, with the inbuilt administrative and legislative barriers and frustrations proposed it will be virtually impossible for the constitution to be ever changed.
Why not go to court for change?
Article 2 (2) states categorically that “the validity or legality of this constitution is not subject to challenge by or before any court”.
This means that what this government’s agenda (right or wrong), contained in the proposed constitution, cannot be challenged by any person or court….ever.
OTHER VERY WORRYING SPECIFIC ELEMENTS IN THE PROPOSED CONSTITUTION:
Land Issues
Summary
Fundamentally, the proposed constitution removes the sanctity of title and the principles which provided citizens with the security of private ownership that Kenyans have enjoyed since independence.
Its possible effects have colossal implications for all landowners no matter how small or large.
How ?
The proposed constitution proposes new definitions of land:
Under the Article 79 (2) all land in Kenya will now become “public, community or private”.
Under Article 80 (1) (g) “Public Land” includes: “..water catchment areas,….animal sanctuaries”
What are the implications of this?
This means that if you own a shamba which is in a water catchment area or if you own land which has wildlife on it (bearing in mind that neither are defined in the constitution), the government is not only entitled to convert your private land into public land, but under Article 289, your land becomes public land with immediate effect the day the proposed constitution is adopted.
The possibility for abuse is enormous.
The government’s right to seize your land:
Under section 80 (1) (m) public land also includes “any other land declared to be public land by an Act of Parliament”. Similarly, under Article 81 (2)(f), “community land” is “any other land declared to be community land by an Act of Parliament”.
What could this mean?
This would allow the government, with a mere 51% of the vote in parliament, to pass legislation to appropriate anybody’s land- irrespective of how they acquired it or the title that they have.
Under the present constitution the government may do this for specific reasons eg: defence and under section 3 they are obliged to compensate you for the same.
Under the proposed constitution, they can seize your land for any reason claiming simply that it is either Public or Community land.
In addition to this there is no provision for any compensation.
Incidentally all this purloined land would then be “administered” by the National Land Commission (Article 80 (3))- see later.
What about “community land”
Under section 81 (1) all land held by county councils, group ranches or indeed by any community shall be classified as community land (whether previously registered or not). This land will then have to await fresh legislation (Article 81 (4)) to determine who the owners of this land should be.
Deviously, the drafters have ensured that this must come into effect “within 2 years” (Fifth Schedule- Legislation to be Enacted by Parliament), i.e. before the next General Election.
This means that the government will have the opportunity to seize Group Ranches, County Council Lands etc and re-allocate them to their cronies or in order to “buy votes”, prior to the next election.
More frighteningly, under Clause 17 of Article 288 (Savings, Transitional and Consequential Provisions) all community land “shall be held by the National Lands Commission”, until communities are “identified” and their title is registered.
There is NO TIME LIMIT on this. The government could hold your group ranch, communal land etc. indefinitely….
Other Increased government powers to seize your land
Under Article 84 (1) the government …..”has the power to regulate the use of any land, interest or right in land in the interest of………land use planning or the development or utilization of property”.
What does this mean?
As the constitution does not define land use planning or the development or utilization of property, it is open to the government to seize your property for any project that it sees fit.
If a Minister or the National Land Commission wants your land, they would just have to get a Ministry to make some spurious plans for a “project” and then seize your property. There is no obligation to proceed with this proposal within a time limit or indeed to justify the proposal at all.
Equally alarmingly, there is no clear provision for compensation (unlike the present constitution).
What about the claimed rights for citizens to acquire and own property, in any part of Kenya, under Article 58
Whilst Article 58 appears to protect private land ownership, in Article 58 (1) it initially specifically excludes from protection foreigners (Article 83) and land seized for government projects (Article 84) but then in Article 58 (3)(a) it goes further and excludes all of Chapter 7 (i.e. all the proposed provisions that deal with the proposed land policy) or land that is seized for a public purpose or interest!
The conclusion being that there would no longer be an absolute right to acquire and own property in any part of Kenya.
What about the entitlement to compensation that we have under the current constitution?
The only compensation that is clearly set out in the proposed constitution is under Article 58 3) (b), which allows for compensation where land is appropriated for a “public purpose” or “in the public interest”.
Alarmingly, there is no mention of compensation for the numerous other strategies set out in Chapter 7, which allow the State to seize land.
Other frightening powers of the National Land Commission
Powers of a court
Under Article 85 (g) the Commission is charged with ensuring “appropriate redress” on all land injustices both present and historical. The National Land Commission becomes a court in its own right.
There is no limit in time as to what constitutes historical, it could be defined as last year or 200 years ago.
Would the Sultan of Zanzibar’s survivors be able to claim back the land they lost to the British and which subsequently became Kenyan or the Ugandan’s those parts of Kenya they claim as theirs historically, or the Maasai all land in the Rift Valley settled by other tribes, or indeed those tribes who occupied the land prior to the Maasai’s arrival?
This is a recipe for chaos.
Tax raising powers
Furthermore, under Article 87 (2) (j) the Commission can assess tax on land and premiums on property. This will allow Commission to supersede the role of the Kenya Revenue Authority and the local council.
Who determines who sits on this powerful Commission?
Article 273 (b) and (c) state it is “ …..the president (and approved by parliament-i.e. approved by his party)”.
I.e.: the very people who “seize” your land then “administer” it. The Marxist dream has arrived.
Foreigners
Under Article 83 (1) all property owned by foreigners shall become a maximum 99 year lease.
There is no compensation for the interest lost e.g.: the 900 years of 999 year lease nor are there any allowances made for encumbrances (mortgages etc) that were made with the view that properties had longer than a 99 year lease.
Furthermore, they have made no provision in the constitution for ownership by corporate entities. Corporate entities do not have a nationality, consequently it remains ambiguous whether publicly or indeed privately owned companies will forfeit their freehold tenure.
There is also no provision stating whether this 99 year lease shall be renewable and on what terms.
The signal that this sends to overseas investors, and the confidence in which they should view investing in Kenya, is worrying.
This is also in stark contrast to the freedoms that Kenyans enjoy, in other countries around the world, when it comes to purchasing property.
Matrimonial property
Under Article 86 (1) (d) there are to be provisions to protect matrimonial homes during the termination of marriage.
This would in effect mean that banks would not be able to execute a charge against a property, if the other spouse could show it was a matrimonial property.
The ramifications for the banking industry and by extension, the general population’s ability to borrow money, are potentially disastrous as banks would have virtually no property they could secure loans against and would therefore stop issuing loans.
Maximum and Minimum acreages
Under Article 86 (1) (l) parliament is required to enact legislation “to prescribe minimum and maximum land holding acreage in arable areas”. As we have seen (prior to the government’s U turn) this means that the government can prevent the sub-division of land and consequently prevent children sharing equally in their parents lands.
At the other extreme, by setting a maximum acreage of land the government is clearly stating that it intends to follow in the footsteps of Mugabe and take land as and when it seeks fit, and from whoever it decides, irrespective of whether that land was lawfully acquired.
Logistically, setting acreage limits would be unrealistic as the population is constantly changing and unless they propose changing the acreage limits every time the population changes, the concept becomes redundant.
OTHER AREAS OF CONCERN IN THE PROPOSED CONSTITUTION:
Right to Life
Article 35 (1) “states that every person has a right to life” but then goes on to state “…..except as may be prescribed in an Act of Parliament”!!!!
This means that parliament can pass any legislation that removes the right of life for any body or group as it sees fit: old, young, unborn, wrong tribe, you name it!!!
So there is no absolute right of life.
Under the present constitution the right to life is guaranteed except where a person has been convicted of a capital offence, in a criminal court. Period. No room for parliament to meddle. Not so with the proposed constitution.
State of Emergency
Under Article 75 (6), during a state of emergency, legislation may be passed which breaches the proposed Bill of Rights
This could just be acceptable until you read that there is no time limit placed on how long that legislation remains effective.
This would allow the State to introduce draconian legislation would could stay alive indefinitely.
Is there a real concern the country will grind to a halt?
In the Sixth Schedule Clause 2, it states that all current laws will remain in force but shall be modified and adapted to bring them into line with the proposed constitution from the date of the proposed constitution coming into force.
This means that every existing Act will have to be scrutinised, interpreted and ultimately referred to the courts to determine how, if at all, it should be amended and what its affect will be.
Business will grind to halt as will our courts.
What of the concern that the proposed constitution encourages civil insurrection?
Article 1 (2) states very clearly that “The people may exercise their sovereign authority either directly or through their democratically elected representatives”.
The implication here is that people can either vote for change (i.e. democratically elect their representatives) or in the alternative take direct mass action, this can legitimately be interpreted as marching on State House or Parliament and using force to remove the government.
Again, this may not have been the intention of the drafters but the problem remains that it is still in the proposed constitution.
Is it true that the proposed the constitution favours one particular tribe for the presidency?
Sadly, yes. Under Article 149 (4), in addition to receiving more than 50% of votes cast, the aspiring president must receive a minimum of 25% of votes in more than half the districts. Statistically, this means that only the largest and most wide spread tribe could ever achieve this.
Numerically, it is extremely improbable that other smaller and less widely distributed tribes could ever achieve this 25% of votes in half the districts.
What is the most frightening aspect of the proposed constitution?
The undermining of parliament’s sovereignty.
But what about all the “consequential” legislation that is proposed to ensure that the correct and appropriate systems are in place to guarantee that the constitution is applied fairly and effectively?
On a reading of the constitution and specifically of the Fifth Schedule (Legislation To Be Enacted By Parliament), 57 pieces of legislation will have to be enacted within six months to three years and 47 of these will have to be enacted within 2 years!!
Bearing in mind the miniscule pieces legislation that Parliament passes every session, this statement is preposterous….until one reads perhaps the most frightening aspect of the constitution, hidden away in Article 287 (5), which reads:
“Where parliament has not enacted legislation within the specified time……the Bill (any bill as put forward by the Attorney-General, in Article 287 (4)) shall be deemed to have been enacted…”
What does this mean?
Simply this- all 57 pieces of legislation that have not yet been passed by parliament within the prescribed time (i.e. 6 months to three years), will automatically become law when the prescribed time has passed, without parliament having ever looked at them!!! I.e. the Attorney-General and the President can ensure that all contentious Acts become law automatically without parliament’s approval.
Summary
The issue is not whether this government or successive governments would abuse these loopholes, uncertainties and defects, but that they actually exist and somebody wants them to become part of our constitution.
Whilst acknowledging that 80 % of the proposed constitution is good and proper, the 20% is so iniquitous that no Kenyan should even contemplate voting for this constitution.
As they say, the devil is in the detail.