Posted by My Story on December 2, 2009
BY NDUNG’U WAINAINA
Why a new democratic constitutional order?
The aim of a democratic constitutional state is to maintain a social order in which the individual liberty of the citizen is the major concern. Consequently, a democratic constitutional state should guarantee both a high level of individual freedom and an order in which such freedom is made possible and guaranteed. A democratic constitutional state is characterized by pluralism and diversity. It has to establish a political institutional system within which order and diversity/liberty are possible.
A new democratic constitutional order must:
i. Recognize a set of individual fundamental rights and freedoms which are deemed to be at the very core of the political construct. In principle, the State is not allowed to encroach upon or to interfere with these rights. Human rights work as a shield or a bulwark.
ii. Enshrine the rule of law that constitutes a democratic state. Such a system implies the mutual accountability of state powers, and hence the reciprocal transparency and controllability of the legislative, the judicial and, last but not least, the executive power.
iii. Recognize the postulate of the people’s sovereignty and the principles of democracy and democratic representation.
iv. A democratic constitution must serve as a creative framework for an enduring quest for democratic self-governance of Kenyan people, their aspirations and desires.
v. It should compel government to be responsive and answerable to citizens.
vi. The constitution can assure accountability of public officials and policies by unconditional respect of the rights of each individual and minority against government.
vii. An expanded and justiciable bill of rights would place fundamental freedoms beyond the reach of political authorities.
viii. A further safeguard against tyranny is the separation, checking and balancing of the principal powers of government-lawmaking, administration and judicial judgment. Separation of the three constitutional agencies and judicial review are reliable restraints on the will of the majority.
ix. Beyond the imposition of limits on the state\’s power, constitutional design needs to overcome cultural, economic and social barriers to equal participation of citizens in decisions reached on public matters.
x. Giving citizens an effective voice in public life is an essential component of democracy.
xi. A constitutional democracy must allow fair and robust rivalry for political office. Political parties with competing ideologies and programs must contend for public support by means that will secure compliance of the losers to the authority of those who are able to persuade the major part of citizens of the soundness and justice of their political agenda.
xii. Constitutional arrangements would oblige those in power to compromise and deliberate with a loyal opposition advocating competing policies; delegates are thereby forced to seek harmony between partisan and public interests.
xiii. The dialogue between the electorate and competitive representatives holds out to the citizenry the prospect of institutional stability and a deepening sense of political identity
Overview of the Draft Constitution
For the last 20 years, Kenyans have been craving for a constitution that in all aspects reflects ideals, values and equity for all within its borders. The Committee of Experts has come up with a harmonized draft that is informed by the Bomas draft, Wako draft, Naivasha accord amongst other contemporary considerations.
Throughout the thread for constitutional review in Kenya, certain issues have remained contentious notwithstanding the numerous consensus efforts;
(iii). Kadhi courts;
(iv). Transitional, savings and repeals clauses
Even with the harmonized draft, these issues have been earmarked contentious.
The nation currently has a challenge to understand whether the CoE, has actually reflected their aspirations. Be as it may, the draft articulates the aspirations of Kenyans but fails to seize the dragon by its horns in the sense it fails to delimit a devolved government that is at the service of the people as compared to the system it currently sets out which actually a bureaucratic system among other salient features and has sought to make transient provisions of permanence.
Article 123, establishes a parliament of Kenya which consist of senate and the National Assembly. Any decision of either House has to be ratified by the other House with an exception of Money Bill. This is critical for checks and balances for vindication of the peoples will.
Article 124 set out the roles of the parliament inter alia:
a. Enacting legislation;
b. Deliberating on and resolving issues of concern to the people;
c. Passing amendments to the constitution;
d. Approving sharing of revenue among the levels of governments at each level and appropriating funds for expenditure by the national government and other state organs;
e. Ensuring equity in sharing of national resources and opportunities among all parts and communities of Kenya;
f. Scrutinizing and overseeing actions of state organs;
g. Considering and approving treaties and international agreements;
h. Approving appointments set out in the constitution or any other legislation;
i. Reviewing the conduct of the president, deputy president and other state officers;
j. Approving declarations of war and extensions of state of emergency;
Article 124(3) states that the principal role of senate is to provide an institution through which the devolved government share and participate in the formulation and enactment of national legislation and protect the interests of the devolved governments. This is a positive clause. Pursuant to Article 142, any member of the public can petition parliament to either mane, repeal or enact any law in accordance with the to be enacted procedure though there are no timelines for enactment, like under Article 131 there is proviso to recall a member of parliament. The office of official opposition is constitutionalised (Article 135), this is a positive provision considering that the 9th parliament grappled with this institution when the expected leader of opposition dined with the then ruling government, the creation of National Accord created a lacuna of who constitutes official opposition. Opening of Parliamentary Service Commission, has adopted the policy of checked power equation not an exclusive club of politicians , though the CoE would done better by making the Commission better by providing of Members of Parliament and Senators are ex-officio. On the onset we wish to point out that an electoral system and representation is crucial to determine the model of governance and decentralization of powers duties.
In any democratic system, the aims of a devolved government structure is to empower people, institutionalization of governance structure and processes which autonomous to create the desired results reflective of principles and objects articulated in articles 213 and 214. Be as it may, facts must be addressed ‘squarely’ (sic) Kenya is a nation divided along tribal inclinations and it would be institutionalization of ethnicity if the wave of regionalism addressed on the onset, the dragon of ethnicity can be categorized to regional in this country, preferable to tame it by confining the government structure to Counties and the national government without obsession/hangovers of provincial administration. If really the devolution of government is to guarantee effective delivery of services to the citizenry, then we must embrace the checks and balances by both Senate and the National Assembly as to each other and other arms of the government. As it is, it seem apparent that the quest for power is at play without due consideration of the taxation implication just to quench thirst of localized tyrants. Preferable to focus on a well and coordinated representation at the county, Senate and National Assembly being alert to the fact that the parliament shall enact legislation to ensure proper coordination between the national government and the localized system.
The next question is whether the CoE has actualized the ideals of equity and equality in representation, without being skeptical facts can adduce more. Consider Bungoma district with six constituencies will be a county with equal representation in the senate with Lugari district with one constituency, is this equity? There is exigency for the Committee to formulate principles of representation based on several aspects for instance mixed member representation. Executive has remained the most controversial phenomena in constitution making across the globe and Kenya is no exception but even then let appreciate political party system in Kenya lacks the requisite discipline, consequently it has instilled fear across the political circles and the citizenry. To my mind imperial presidency can be diluted by a clear checks and balance like the American system. Problems can be solved by taking stabilizers but acknowledgement and finding durable measures. The draft sets the presidential candidate on a national campaign trail with pledges but finally rest in state house with drafting of request to the cabinet to consider adopting certain policies. Without advocating for any particular system we should acknowledge the political inadequacies in this country and then proceed to provide that the CEO of this Republic should be held accountable to his/her pledges but it would be unfair to purport that one can really be held responsible for decisions beyond their mandate.
Key Areas of Focus
i. Electoral system and Representation
Kenya’s political landscape is a minefield that has generated acrimonious political relations. Post-election violence, accusations and counter-accusations of electoral fraud, manipulations and litigations must not remain the hallmark of Kenya politics. Such a political climate calls for an electoral process capable of healing the wounds resultant of the political tension obtaining in the country.
There is need for an electoral process that can create contended losers, those that lose in humility and are rational enough to realize the election is not all about winning but creating a Kenya that guarantee and protects the fundamental rights and civil liberties of every individual Kenyan. An electoral system can easily be understood as a way in which votes are translated into seats. There are hundreds of electoral systems currently in use and many more permutations on each form. However, there are three broad families of electoral systems: Majority–Plurality Systems (First Past the Post/FPTP); Semi–Proportional Systems; and Proportional representation systems. Kenya’s electoral system is a "first past the post" system with single member constituencies where the candidate with the most votes wins a seat in the national assembly. While the system ensures accountability to constituents for those elected, FPTP has, however, tended to create outright winners who care little about building bridges with contesting parties.
Therefore, used on its own, FPTP tends to fail in the proposed task of healing political wounds. It is in this vain that we propose proportional representation to be merged to FPTP to come up with the best electoral system for the parliamentary vote and proportional representation (PR) proper for the senate.
With a bit of dexterity amassed from experience, the PR system can be merged with the current electoral system to come up with a system that can harness the advantages of both while systematically diminishing the disadvantages associated with the two electoral systems. Therefore, the Mixed Member Proportional Representation (MPPR) would entail that FPTP would be used for contested parliamentary seats while PR would come into force for compensatory seats which, in the current situation, are occupied by non-constituency MPs appointed by the Executive.
Any electoral system that is going to be agreed upon must observe and guarantee
• Fairness to voters/parties
• Equality of votes
• Gender and affirmative principle are safeguarded
• Greater diversity of parties and representation
• Greater voter participation
• Systemic legitimacy
• should produce strong majority government( which maybe a coalition) that can get things done
• should produce stable government,
• Voters will exercise their democratic right through direct voting in a representative to the National Assembly but also ensure that the party he or she supports is awarded seats in Parliament based on proportion of popular vote received by party (MMPR principle)- in the execution of fair representation, equality and parity.
• Fairness relates to those aspects of the system that ensure that every vote is of equal value and that the parties are treated fairly in their representation in parliament.
• Inclusiveness; refers to the need for a system to be as all embracing as possible in terms of drawing in groups across the political spectrum to induce shared goals and shared values between them. The system should also be inclusive through ensuring that all groups, however they may be defined, are represented within legislatures. The system should be simple, open and easy to understand.
Vetting of appointments and electoral candidates
Elections and holding public office are an important step forward in fostering democracy, stability and human rights. Candidates to public office must meet certain threshold of integrity and probity.
1. The Election Commission must set regulations that candidates against whom criminal charge sheets have been framed and accepted for trial by a court of law may be debarred from contesting elections.
2. Candidates while nominating themselves, have to declare in the form of affidavits their criminal antecedents, if any
3. Parliament will enact a legislation requiring vetting of all public office holders to be vetted.
Why we strongly recommend for the adoption of Mixed Member Proportional representation (MMPR) in Kenya.
In giving this recommendation we have weighed the following issues
• Fairness–are there built-in biases that affect results/turnout?
• Representation–does it produce results that broadly reflect the way society looks?
• Equality–do all votes count or are many wasted?
• Accountability–can voters clearly identify and hold governments accountable; does it produce effective opposition?
• Effectiveness–does it produces stable, accountable working government able to govern?
• Legitimacy –do voters accept the results of the election; actions of the government / legislature?
A choice of an electoral system is determined by various factors and circumstances of each particular state; it is evident from past and contemporary jurisprudence that Kenyans have been craving for a system of governance that is they have ownership, by implication it has to be representative and so the greater task for this nation is to have a representative and inclusive participation I the formulation of policies and their implementation. The level of political party maturity can and actually influenced our reasoning of the kind of representation that is favourable, the system of devolution in most cases influenced by the kind of electoral system that is at play bearing in mind that political are the central formations in the governance of any modern democratic state.
The underlying course that ought to determine an electoral system is how it can contribute to political accountability in the sense of closer interaction between the public representatives and voters. In the preceding paragraph, accountability means;
Internal party discipline;
Role of parliament;
Separation of powers;
Relationship between party and support base.
Basically an electoral system should result in a legislature that is representative of the entire nation and that fairly reflects the opinions of the whole electorate and not just the majority, must be an accurate map of the whole nation, a patriot of the people, a faithful echo of their voices, a mirror which reflects accurately the various parts of the country.
Draft Constitution on representation
The draft is abstract in terms of clarity of electoral system that is applicable, either it is deliberate awaiting the outcome of the Interim Independent Boundaries Review Commission and IIEC, the draft should have at-least based on the recent electoral dispute and post election violence, have set out a criteria that it is preferable for the nation to adopt a certain electoral formula, which for us we advocate for a mixed representation system in which;
a). constituency based seats are retained;
b). party based seats are introduced;
c). a sum of party based seats and constituency seats make the legislature;
This is the practice in Lesotho and more countries in the southern Africa region are shifting to it. The advantages are that it individual characters are at scrutiny as well as party ideologies are screened, either way a balance is struck.
Article 103 vests the Parliament with mandate to legislate on the guiding statute on the electoral boundaries for constituencies and counties. Without sounding rhetorical of role assigned to the parliament, it is evident from recent political statements and declarations, politicians cannot be entrusted with this critical role, we should at-least state the considerations to be taken into account. Every other politician wishes to have their electoral areas minimized to increase their chances of survival.
Adopt MMPR that will take care of both the majority and minority by the very nature of being inclusive. Gradually this kind of electoral system will be instrumental in building and strengthening political parties, ownership of the system by the citizenry and foster accountability.
Article 123, establishes a parliament of Kenya which consist of Senate and the National Assembly. Any decision of either House has to be ratified by the other House with an exception of Money Bill. This is critical for checks and balances for vindication of the peoples will.
National Assembly- The National Assembly is elected through MMPR electoral system to represent the people and specific interests vide affirmative principle/policy
Senate- represents the devolved units to ensure that Units’ interests are taken into account in the national sphere of government and legislation process.
Imperial presidency and control of Legislature
1. sword of Damocles to pass vote of no confidence, since can dissolve the National Assembly;
2. control of parliamentary calendar, parliament enjoys no autonomy; the president has powers to prorogue the National Assembly at any given time depending on the heat of the moment for instance after the 2005 referendum, Kibaki dissolved the cabinet and three days later prorogued the parliament.
3. Members of cabinet have to remain loyal to the president otherwise risk sacking, furthermore the president can lure Members of Parliament with cabinet portfolios;
4. power to veto legislation, this defeats the spirit, it is an assumption that the President is a legislator and therefore should own up National Assembly decision;
Article 124 set out the roles of the parliament inter alia:
k. Enacting legislation;
l. Deliberating on and resolving issues of concern to the people;
m. Passing amendments to the constitution;
n. Approving sharing of revenue among the levels of governments at each level and appropriating funds for expenditure by the national government and other state organs;
o. Ensuring equity in sharing of national resources and opportunities among all parts and communities of Kenya;
p. Scrutinizing and overseeing actions of state organs;
q. Considering and approving treaties and international agreements;
r. Approving appointments set out in the constitution or any other legislation;
s. Reviewing the conduct of the president, deputy president and other state officers;
t. Approving declarations of war and extensions of state of emergency;
Rationale for bi-cameral House
Provides checks and balances as between them; the Senate shall have an oversight role over the National Assembly as it agitates for the County views and at the same time offer a mechanism to audit legislation passed by the National Assembly;
Oversight role over the executive strengthened; all appointments have to be vetted to be in conscience with the principles and values set in chapter three and nine.
Provides avenue for addressing issues arising from the counties;
Guarantees inclusiveness and diversity in representation.
The governance system in Kenya should reflect national, strong viable devolved County Units and local authorities which may be distinctive, interdependent and interrelated. These devolved Units shall derive their powers vide the Constitution provisions. They must be able to exercise executive authority on legislation, administration and financial matters independently.
The defunct CKRC received views to vest and transfer powers to provinces and districts (It seems that the replica in the harmonized draft are the Regional and County levels).
1. To break up the epicenter of power.
2. Recognize the diversity of the country and its people.
3. promote greater participation in public affairs.
4. make government more efficient, response and accountable.
The debate in the country currently confuses federalism with devolution; this can be attributed to the alarming debates of ‘majimboism’ (sic) since pre-colonial times.
Core Principles of devolved governance
Power should be devolved as close to people as possible compatible with efficiency.
Government at all levels must be democratic with some form of separation of powers in the South Africa model.
Interests of minority must be protected.
Equitable distribution of resources and opportunities for development.
Relation between different levels should be constructive and co-operative.
In any democratic system, the aims of a devolved government structure is to empower people, institutionalization of governance structure and processes which autonomous to create the desired results reflective of principles and objects articulated in articles 213 and 214.
There are salient factors to be considered for a realistic devolution:
i. what does it mean in practical terms for Kenyans?;
ii. how does it affect their constitutional rights?;
iii. is it viable solution to the problems it purports to solve?;
iv. does the country have resources to sustain it? ;
v. maybe the implication at the international levels,
The functions of the proposed three tier system are set out in the fourth schedule and for insight the relevance of regional governments is questionable considering that every county has representation in the senate by electing senators, furthermore the MPs do come from the same counties.
Functions of the Regional Government are:-
1. the co-ordination and supervision of the counties in the course of implementation of the national and regional policies and standards;
2. formulation of regional policies
3. setting of regional standards
4. regional planning