I have not only followed this constitution story from inception but I have indirectly participated in its quest, Bomas and its resulting referendum was a mess and when the COE draft came out in Nov 2009, I rushed for a copy which I read and was mainly attracted to the devolution and the executive split amongst many other goodies, I drifted through the Naivasha amendments which even though some were selfish and apolitical, did not change the gist and so I was good, the COE later did a rendition and smoothened some few rough edges and parliament adopted it and a copy of which I have just re read for the umpteenth time just to be sure I aint selling my soul!
I read like I was taught in law school in wholesome, i.e to get the proper interpretation or the intent of a legal provision you look at it in tandem with the other related clauses or in its entirety not in isolation coz that would only suffice selfish interest only.
A gloss over the pros I encountered, chapter 3 on the our national values principles and goals which should set up your mood on the intent and purpose of this document not forgetting the preamble and its defining initial chapters outlining the supremacy of the Kenyan people and their important role in defending the abuse of the same document, here I discovered the peoples first democracy tool.
The bill of rights in chapter six is all inclusive and one of the widest and most realistic to modern circumstances remember human rights also evolve, but sticking out is the exclusive provisions on the freedom of media which I consider also a people democracy tool as it will be the same vehicle to be used by the future amendments proponents and it should thus be protected, don’t forget im reading in tandem with. Furthermore the entrenchment of the human rights and gender commission and I believe they won’t just bark anymore but have a basis for a bite and this is another people’s democracy tool. The provision is quite wide and cognizant of myriad of rights.
Shrewd politicians have mastered the electoral manipulations to achieve their devious ends but an antidote is injected even though small in chapter ten on representation of the people outlining rigorous electoral system and process which I believe would sieve even though a little of the chaff.
Devolution as captured in chapter 14 does not exactly impress me, but at least it heads there and im aware of the cautionary restraint of the drafters since Kenya’ s societal web is so ethnically formatted that consensus on the geography, levels and any other detail of devolution would be a dream for now. Never the less it brings the government closer home and as we enjoy the honey we will learn to appreciate and agree on improvements.
The legislature is superb and stringent qualifications are set for the august house wannabees which are not only academic but also moral and based on integrity, we all know what that means to politicians we have, read with me in wholesome and this is the other tool.
The executive seems to have an imperial presidency but look at the checks and balances involved plus what you have to be to be one not forgetting all approvals will be through parliament which he can’t dangle ministerial positions to entice. The cabinet also has a fixed number.
Judiciary is to be thoroughly vetted and made independent, the interest of the marginalized groups are impinged therein not forgetting the land policy, the dual citizenship and the provisions on leadership and integrity which corroborates with chapters on executive, public finance etc. Keep reading in wholesome.
I could go on and on, the transitional clause is very appreciative to the wounds of the last general election and has spread overtime to massage egos of both sides encouraging consultation in effect and I too appreciate after all it will soon self expire.
The amendment of the constitution has been orchestrated in such a manner that you must have the nod of the people and this does not make hard but only makes it right, i.e. if the church, just as an example wanted to amend the Kadhi courts clause do you think it would be hard for them to raise the requisite numbers in the referendum if that was the right thing.
I wouldn’t sign off without throwing my two cents on the contentious issues and has been zeroed down by the media and many, the kadhis courts, I realize that other than being subordinate courts (and if you follow the hierarchy order of the judiciary, you realize up to what levels you can appeal their rulings based on constitutional interpretations and any other reason and here read the document in its totality) provides that they only adjudicate over personal matters, divorce and marriages etc the same provision provide for other magistrates courts and its obvious what the intent is, besides we don’t have uniform Christian laws on personal matters because the bible is also subject to various interpretations and we do also have quasi Christians. But above all section 10 separates state and religion.
On abortion I looked at the exceptions and asked myself aren’t they realistic and much regulated? Cap 63 of the penal code chapter 20 further reiterated my interpretation and I believe the provision of the draft largely borrows from it that majorly the responsibility of a person who has charge of another and here is the mother and in extreme circumstances the state through its professional delegarees. Remember the opening phrase abortion is illegal.
Personally my biggest beef is with the land clause, I of course applaud the national land policy and its intent to equitable redistribute and reclassify the land but in that venture watch we don’t Mugabe the country, however my fears are secure with fact that modalities have been left to the legislature which I believe should do a good job but if they fail RECALL clause, read the document as a whole! If it was up to me, raise the tax for the big land owners with large unutilized tracts to encourage them to sale and maybe give incentives to those foreign land owners who willingly agree to conform and regularize their lease periods. Nationalization? I didn’t see any!
If we don’t pass this draft we remain with the status quo and all our fears and hope for the unforeseeable consensus, brothers and sistas I’m voting yes coz the pros outweighs the cons even in the few clauses that I have mentioned.
GOD BLESS KENYA.
Paul Ochieng is an Advocate in Nairobi and the legal convener for K4C.