Kenya Celebrates First Mashujaa Day

Mashujaa Day is one of the three public holidays in the newly promulgated constitution. Mashujaa day which means (Heros' Day) replaces the former Kenyatta day which is celebrated on every 20th October. The first Mashujaa day was celebrated by honoring the pre-independence days heros and today's heros from all walks of life. For the first time in the history of Kenya these gallant sons and daughters were publicly acknowledged and honored. What a change of perspective and vision. The spirit of the new constitution is really about to shape the attitudes and priorities of Kenya people.

A New Kenya, A New Dawn, A New Vision!

When Kenyans voted for a new constitution on 4 August 2010, they believed in their own minds and hearts that they voted for a New Kenya, a New Dawn and a New Vision. In contrast to the past, they maintained peace, decorum and calm during the campaign period and on the voting day. They clearly despised and shunned the few instances of hate speech and the perpetrators. As it were, the Kenyan people were sending a clear message that the past era was gone and a new dawn had set-in in the country. With the promulgation of the new constitution on 27 August 2010, it is desirable to reflect on the significance of these words.

A New Kenya

The people of Kenya had longed for a new political order for decades. Although many would suggest that the quest for a new constitutional order started 20 years ago, the truth of the matter is that, it goes further back to the days immediately after the independence. Kenyans never liked the way the political elite governed for the past 47 years. They hated the way the elite wrestled political power from the people and converted democratic institutions to vehicles of one-party and one-man dictatorship. In the New Kenya, Kenyans envision restoration of political power to the people and their democratic institutions. Political power no longer should reside in a dictatorial state but in the people of Kenya and peoples’ democratic institutions. This is precisely the strongest assertion the new constitution makes.

The Constitution starts in Article 1 by affirming that the sovereign power resides in the people of Kenya and not the State apparatus and institutions. The State organs and institutions exercise the power as delegated to them by the people in accordance with the constitution. The state organs are there to serve the people not the other way round. The era of people’s subservience to the State has ended. In the new order, there is no room for an imperial president, overbearing executive and parliament and partial judiciary. These institutions have to function within the limits of the powers conveyed to them under the constitution. They must respect the devolution of power and independence of institutions. No constitutional institution is superior to the other as all derive their powers from the people. Nonetheless, the institutions must cooperate in exercise of these powers. They also must act as checks and balances on each other in order to protect peoples’ sovereignty and promote rule of law and constitutionalism.

Independent constitutional institutions and offices such as the National Human Rights and Equality Commission, the Electoral and Boundaries Commissions, the National Land Commission, the Commission on Revenue Allocation, the Salary and Remuneration Commission, the Public Service Commission, the Teachers Service Commission, the National Police Service Commission, the Judicial Service Commission, the Parliamentary Service Commission, the National Police Service, the National Intelligence Service, the Kenya Defence Forces, the Attorney General, the Director of Public Prosecutions, the Auditor General and the Controller of Budget all have to work within the limits and confines of the constitution and law. Their purpose is to serve the people and not any particular arm of the government. In the past, most of these institutions purported to serve the whims and interests of the ruling elite. Their objects, as stated in the constitutions, are to protect the sovereignty of the people, secure observance by all State organs of democratic values and principles and promote constitutionalism. Kenyans expect nothing less.

The new Kenya ushers a new era of governance. It is the era of governance through the constitution and institutions. This is in contrast with the past when individuals heading these institutions were bigger than the institutions themselves. In the new Kenya, institutions will no longer be synonymous with individuals. The institutions must carry out their functions independent of the individual leaders.

A New Dawn

A new dawn brings with it new expectations. In Kenya, a new dawn arrived with the voting of the new constitution into law. As the people celebrate the promulgation of the new law, they do so full of expectations of a new era as describe above. They foresee an era of democracy, rule of law, constitutionalism, human rights, and economic-social development and prosperity. However, they are not naive. As the saying goes ‘once bitten, twice shy’, they know that for the new dawn to have meaning, they must remain vigilant and defend the constitution from those who would like to undermine it. As the constitution moves to the implementing stage the people must guard against elements that have always worked against the realisation of the new political and legal order. The populace must identify, shame and shun any person, group of persons or institution that may attempt to circumvent the proper and full implementation of the new constitution. That is the only way the constitution will be a New Dawn to Wanjiku.

A New Vision

In the past, new dawns like the one being experienced now too soon turned into dusk as those entrusted with implementation lost the vision that united them during the struggle. Immediately after independence in 1963, the independence political party, Kenya African National Unity (KANU), lost its vision when the leaders of the struggle and new independent Kenya were engrossed in personal, ideological and ethnic antagonism. The same happened after the historic election of 2002 when National Rainbow Coalition Alliance leaders turned on each other for the same reasons. Personal, ideological and ethnic rivalry did not serve Kenya well in the past and this time round the political leadership must learn from history and avoid such conflicts for the sake of unity and prosperity.

The new constitution encompasses a New Vision of constitutionalism and institutionalism. The full and proper implementation of the constitution is the only guarantee that the New Kenya the people voted for and the expectations of the New Dawn are realised. The political class should not short-circuit the people of Kenya again.

Long Live New Kenya, Long Live New Dawn, Long Live New Vision.

Kenyan Tourism Advert Commuting around in Berlin City

Recently while in Berlin City for holiday, I was surprised to notice a big Kenyan tourism billboard Ad on the side of one of a Berlin public transport bus. Before I could point my digital camera for a picture, the bus zoomed away. However, on the last day of my stay in the City, the bus with the billboard Ad stopped just close to where I stood. This time round my camera was handy and I took the picture above which I wish to share with you.

The reason for sharing this is first to commend those behind the Ad for a good job. Secondly, it filled me with pride to see the Ad. Such is the positive image of our country one likes to see in foreign countries. Those concerned ought to extend the project to other cities in Europe.

2010 Referendum: Don’t Get Duped Again! Vote YES

Parliament squandered it chance to influence the new constitution but heroically endorsed it. Although majority of the proposed amendments were ill conceived, a minority were desirable. Just to mention few: the amendment to increase the number of counties from 47 to a higher number agreeable (necessary to ensure adequate representation in the senate), the abortion clause (could have been made neutral or scrubbed out, after all silence does not mean endorsing or prohibiting. The courts could have been left the discretion to develop the law in the area and therefore avoid offending the Christians), the Kadhi Courts could have been left out of the constitution (after all the Muslims have not demonstrated compelling reasons for retaining the courts in the constitution. Furthermore, the historical reasons for entrenching the courts in the constitution 47 years ago may not be valid today. There was no adequate debate on this outside the historical justification).

The parliament failed in its responsibility to interrogate these issues. It allowed itself to be divided on party lines, ethnic, regional and parochial interests. If the constitution faces strong opposition during the referendum, the parliament should bear the responsibility.

That said, Kenyans should not allow themselves to be duped this time round like in 2005 referendum into rejecting this constitution. No constitution is perfect and a perfect constitution is a utopia and an ideal to strive to. Despite the shortcomings, this constitution if passed, will radically impact on Kenyans’ lives, democracy, institutions, governance, economic development, resources distribution, and human rights as well as the rule of law and gender equity.

Admittedly, though important to sections of the society, the flaws are too few. Focusing on the almost full glass is better now than on the empty glass. In 2005 the focus was on the shortcomings. Consequently, the good in the constitution which would have given Kenyans a better society were overlooked. Kenyans should reject anyone telling them to wait for a perfect constitution. It is better to seize what is on the table now, and then as the President and the Prime Minister implored, improve on the inadequacies in the future. Believe me once the new constitution becomes operational, the shortfalls will look trivial and chances for amendment may improve.

A word of caution to the politicians and church leaders taking hard positions: The 2007 post-election violence was not a result of a bad constitution but of inflexible positions. Rigidity blindfolded politicians in 2005 that they could not see the consequences of going to an election on an inadequate constitution.

Politicians may not do much damage to the constitution through opposition this time round. But Christian church leaders may have undue influence on their followers. Although I do accept that the issues at the heart of church leaders may have escaped adequate deliberation by the Parliament, Parliamentary Select Committee and Committee of Experts, the constitution is so important to the health of the entire nation that to oppose it may not be the prudent thing to do. My advice is that the love for the good of the nation should temper church leaders’ grievances and the obvious flaws.

Vote YES now! It is better to argue about amendments rather than the whole document in the future.

A Good Draft Constitution but Not Perfect! Part 3 of 3

This is the Last and Thrid part of my comments to the Constitutional Committee of Experts on the Harmonized Draft Constitution. See Part 1 and 2 below.

Representation in a Devolved System
The harmonized draft constitution proposes a three tier devolution system. I have no quarrels with that. Devolution is viewed in many countries as a way to dampen regional, racial, ethnic, or religious cleavages, particularly in multiethnic societies. These should be desirable results in Kenya. That being so the costs of devolution should not be viewed as unnecessary burden to the economy.

The establishment of a bi-camel legislature is good for ensuring democratic balance between majority rule and minority rights. The lower house safeguarding majority rule principle and the Senate protecting minority rights and regional interests. To achieve these results representation in both houses must, however, comply with some basic standards of boundary delimitation: impartiality of boundary authority, equality of voting strength, representativeness in drawing constituencies, non-discrimination by avoiding boundary manipulation, and transparency. While Article 113 of the draft provides for the standards, delimitations of regions and counties in First Schedule and Article 5 (2) seem arbitrary especially when representation in the Senate and Regional Assemblies are based on the number of regions and counties. The principle of equality may not have been complied with especially as regarding the county level. The populations of some of the counties may be too large such that equality of voting strength is not respected.

Similarly, equality principle in representation in the National Assembly should be adhered to in order to make majority rule meaningful. There are perceptions that the way current constituencies are drawn does not comply with the principle of equal representation. The populations of constituencies are not equally divided so as to provide voters with equality of voting strength. In my opinion the representation in both houses should be seen to be fair so as to make devolution meaningful. The people should feel adequately represented at all level of devolution and not circumvented.

Finally, thorough proofreading should be done to the final draft so as to avoid some obvious errors such as in Article 125 (3). The reference to Article 141 (2) (a) does not correspond with the contents of this Article.

A Good Draft Constitution but Not Perfect! Part 2 of 3

This is the second part of my comments to the Constitutional Committee of Experts on the Harmonized Draft Constitution. See Part 1 below this one.

The Executive Powers
In the harmonized draft you propose a hybrid system with an elected president who wields state constitutional powers and a prime minister from the party with majority in parliament on whom executive powers reside. In your effort to clearly define the powers of the president and prime minister so as to avoid conflict you ultimately created a parliamentary system rather than a hybrid system. In the draft, the president has no executive powers at all. He or she is for all practical purposes a ceremonial figure. He or she has little if any influence on policy and how it is implemented. The legislative powers granted to him or her cannot be exercised without the connivance of the prime minister who heads the cabinet that must approve a legislative proposal by the president. The power of the president to assent bills also seems ceremonial as the veto powers are curtailed by allowing a lower member vote threshold in parliament. A president who is elected by the people and in whom executive powers do not reside should have veto powers which are to be exercised to influence policy and protect the interest of the people where these are disregarded by the parliament and the cabinet. In fact, I would propose providing for president to be able to present a bill directly to parliament without the approval of cabinet and where the parliament and president disagree on a law the president should refer the bill to a referendum.

In my opinion, a hybrid system makes sense where the president and the prime minister share real executive powers. The current Grand Coalition Government is a real hybrid system. In order to avoid conflict, the two principals can only act through consultation and cooperation. The existence of multiple powers should not necessarily imply conflict. The best solution in a hybrid or mixed system is not to strengthen one to the detriment of the other. Whether this is the system of government Kenyans want I cannot say. In the previous constitutional drafts, that guided you in your work on the new draft, Kenyans had not contemplated a Grand Coalition Government. Their experience with the current Grand Coalition Government may not be positive so as to persuade them to accept a hybrid system the way it is formulated in the harmonized draft.

The objective of a government is to ensure democratic rule and economic development for its people. The preference for a hybrid system stems from the fear that new democracies are likely to revert to authoritarianism. The need to redistribute executive power between the president and the prime minister therefore becomes necessary. The fear is, however, not supported by evidence. To the contrary, evidence points to so few new democracies that have actually reverted to authoritarianism.

On economic reform performance, the hybrid government seems to do well only where the president and the prime minister share real power. This is because both strong presidents and strong prime ministers exert a positive effect on the implementation of economic reforms. The ideal strategy for hybrid constitution is not the strengthening of one to the detriment of the other. Rather, the implementation of reforms will be maximized at a point in which both the president and the government have significant powers to intervene in the policy process.

Whether the country adopts a parliamentary or presidential system is inconsequential to the level of democratic rule and democratic development that obtains in a country. Both systems were adequately represented among authoritarian governments of Africa and elsewhere. Conversely, the two systems are aptly represented in successful democracies and developed economies. Each system has its own advantages and disadvantages and none fairs better than the other. The strength of one over the other really depends on one’s preference.

Efficiency, rule of law, accountability and so on are inherent in both systems. The choice for one over the other is dictated by other factors. Peculiarity of a country; culture, past experience, level of development and geographical region seem to influence the choice. Kenyans have experienced the presidential system for the last 46 years. Culturally, the presidential system is more familiar to them than the parliamentary system. Although Kenyans have had bad experiences of dictatorship under the presidential system in the past, this did not dampen their preference for an elected president going by their documented views before Bomas. As has been eloquently put by others, Kenyans want to elect their own CEO whom they can hold accountable rather than experiment with unpredictable parliamentarians and political parties. Kenyans do not trust political parties and MPs who change positions on political expediency. At the same time, Kenyans reject an imperial president who “Lords” over them.

In this regard, you were right to propose a hybrid system of government but wrong to transfer all the executive powers to a prime minister and parliament. In the past, the main problem was lack of cooperation avenues among institutions in the presidential system. The system of government Kenyans want falls in between the presidential and parliamentary systems. The executive powers should be shared between the president and the parliament in order to encourage cooperation between them. A strong president and a strong prime minister (close to the French system) seem to be the preferred solution as the pure presidential system is in the past and the future can only be left to posterity. The making of constitution is different today from the making of the constitution in 2003. Let us find solutions to the current problems of governance. So the challenge is how to strike the right equilibrium.

Check out the Final Part 3 on the representation in a devolved system tomorrow.

A Good Draft Constitution but Not Perfect! Part 1of 3

I would like to commend the Committee of Experts on Constitutional Review for proposing a good draft Constitution for discussion. The draft is a good starting point but not perfect as no constitution is perfect. A constitution is a living document which tries to rectify the past wrongs while solving present problems and proposing a road map for the future. In this sense, a good constitution is both backward looking and forward looking. But importantly, a good constitution attempts to solve present problems without being a captive of the past and without imposing solutions to future generations. While we can try to mend the past we cannot predict the future. Posterity will have to solve their problems. But if we construct a good foundation for governance today, the future generation will be inspired by our foresight. So in my view a good constitution is one that offers solutions to our present problems inspired by past experiences and future expectations. Such a constitution cannot be perfect for all times.

I think that the Harmonized Draft Constitution aptly endeavors to find solutions to most of the pressing problems of our nation today. That said, however, there are areas that may need more attention. The draft has positively dealt with matters concerning human rights by targeting political, civil and socio-economic as well as cultural rights, environmental rights and utilization and development of natural resources. In this sense, it has reinforced the fact that human rights are indivisible. It has also appropriately addressed gender balance and disadvantaged persons’ rights in most aspects of life. The rights of minority groups are also in focus. Provisions on citizenship and dual citizenship are also welcome. Land rights, which have been a major cause of conflict, are adequately spelt out and are reinforced in the recently adopted National Land Policy. The provisions on political parties are commendable. The separation of offices of Attorney General and Director of Public Prosecutions and the creation of a new office of Public Defender is innovative. Of course, I am aware that individuals and groups directly affected by some of the rights and provisions will make their views known and where necessary suggest improvements. As such, I will not dwell on such shortcomings here.

My main concern in this commentary is on matters which are still regarded contentious and require input; executive powers and representation in a devolved system.

Check Part 2 tomorrow.