Joseph Kamotho: Constitution Deal by Cabinet Illegal: The Star

In 2004 the High Court ruled that Parliament is not an organ of review and could not purport to replace the constitution under which it was chosen but can only amend the existing constitution.

The ruling by Justice Aaron Ringera restrained the legislature from ratifying the Bomas draft constitution but a defiant Parliament and the executive reopened the document for circumstantial amendments before presentation to an ill-fated referendum.

The ruling is still valid and the law has not changed but ministers last week converged at Mombasa to build a consensus on contentious issues in the new draft by the Committee of Experts on Constitutional Review.

Parliament like other state organs, the judiciary and the executive, are creatures of the constitution and cannot purport to make one for Kenyans in the meantime.

The retreat was in contempt of a court decision and height of impunity Kenyans already abhor and condemn. The legislature and the executive are undermining the independence of the process by anticipating debate on the draft and influencing what should go into the document.

If anything, contentious issues were to be referred for arbitration to the yet to be constituted Independent Constitutional Court.

The committee is at fault by including Parliament and the noisy religious leaders amongst the Reference Group instead of calling for the creation of the Independent Constitutional Court to deliberate on the imagined and real thorny issues.

If , anything, Parliament has outlived its usefulness in so far as the review is concerned.

It had a chance to add value to the process at the National Constitutional Conference at Bomas but squandered it in sideshows and tribal chest-thumping.

Formed out of the ashes , of the post-poll violence, the committee ought to have conducted a postmortem examination on the electoral procedure and propose a departure from the present method.

A proportional representation in which the electorate choose parties and they in turn select parliamentarians could have been an ideal proposal and chaos-free.

This was never considered and already Kenyans are in a dress rehearsal for battle in 2012.

Some of the proposals by the committee are mere experiments and above all public relations exercises by a body that ought to have reminded the ministers that they were in contempt of court and proceedings of the team.

For instance, it is clear that the team had the President, Prime Minister, the coalition and political parties in mind, not the Kenyan people.

Kenyans expected the committee to draw a clear line between the executive, the legislature and the judiciary with inbuilt checks and balances.

Similarly, Kenyans expected the team to delink political parties from the government of the day by banning elected leaders from holding party positions in the interest of national unity.

There can be no shortcut to a new constitution as some leaders would like to think.

The committee's proposal on the system of government promises to be a source of perennial conflict between the Prime Minister and the President similar to the 1966 Uganda constitutional crisis between Prime Minister Milton Obote and the President and the Buganda King, Kabaka Mutesa II.

It is either a presidential system in which the President is elected by the people or a Parliamentary system in which a party with the majority assumes the role of an executive Prime Minister with the President as Head of State.

Kenyans cannot afford a hybrid system in the light of problems it has undergone.

Choice of ministers from within and outside Parliament would generate a lot of heat between nominated and elected ministers. Parliamentarians are basically elected to legislate and represent the electorate.

Appointing MPs to Cabinet positions compromises their role as lawmakers and representatives of the people. Ministers are constrained by their positions to move motions and ask questions regarding their constituencies.

The proposal that High Court judges resign simultaneously as the operationalisation of the new constitution starts smacks of malice and double standards.

The judiciary, like the legislature and the executive, are constitutional offices which should cease to exist as soon as the constitution under which they were appointed is replaced.

For all intents and purposes, the new constitution should be one that outlives tribal divisions, political rivalries, harmonises divergent views and survives the test of time.

The writer is a former minister, MP and secretary general of Kanu and LDP.

This entry was posted in , . Bookmark the permalink.