Francis Tome: PSC`s procedural cynicism is catalytic of the country`s constitutional imbroglio

A couple of weeks ago, I was satisfied with the fact that the Parliamentary Select Committee on Constitution (PSC) regarded with great respect the guaranteed constitutional rights of the electorate. However, going by what is transpiring in the Naivasha grand retreat, I have now modified my position, changing it so slightly so that "satisfied" becomes "dissatisfied," which is just a difference of three letters, but of course with a gulf between them.

In its hurry towards the thrill of a “breakthrough” it has left the public in a catatonic stupor. PSC is exhibiting its arrogance and malfeasance by brazenly frittering away the draft constitution. We have seen it arrogate itself the power to determine the number of MPS that this country needs. (I am informed that PSC is wagging hopeful on a figure of 325!). It is also ominously aiding the miscarriage of article 35, to mention but a few. Shifting attention to that which is beyond its mandate is exactly what is making the public gripe about.

Given that it has allowed political fiefdoms to hold it at ransom, it would have been difficult for it not to dither. That is why it is not surprising that after the counterfactual discussions and concessions it has come up with a Hobson’s choice; a pure presidential system of governance. That is democracy- the PSC style.

Whereas I have no qualms with those who support the pure presidential system, I feel that an equally large section of the electorate has been terribly disenfranchised by being denied the constitutional right to vote for a pure parliamentary system. It would be naïve of the PSC to try to buttress bovine obedience in the electorate when it is very clear that their over- the- counter prescription is unconstitutional. It smacks of dictatorship.

According to the constitution, national sovereignty belongs to the people; not a 26 member PSC. Not even to the 222 members of parliament! Under the principle of universal suffrage, the constitution gives the electorate the right to exercise their political will in periodic elections and referenda.

Therefore, in order to avoid this unfortunate disenfranchisement, parliament should vouch for a “Yes- Yes” referendum. This will ensure that either a parliamentary or presidential system of government is adopted by the country depending on the outcome of the referendum. This will of course mean that parliament amends the Constitution of Kenya Review Act, 2008 to allow IIEC to present two draft constitutions to the electorate; the pure presidential or pure parliamentary systems of Government.

The argument that presenting two draft constitutions to the electorate would paralyze the country flies in the face of logic. A referendum, whether based on a single issue or multiple issues is not a wedding ceremony. Acrimony and even paralysis is not unexpected. However, the worst form of crime is the deliberate disenfranchisement of a section of the electorate. This will create a perfect flight to this country`s incineration. We must refuse to be made the butts of PSC`s procedural cynicism. Neither should we allow it to leaven its strategy of gerrymandering. It is now time that the conscientious public repudiated their PSC`s actions.

What pray thee will happen if we fail to garner the necessary threshold on a single draft that would have been subjected to the much awaited referendum? It would mean that we head to the 2012 polls without a new constitution. It would mean another round of an acrimonious election. We must avoid this pitfall at all costs. We can't get this halfway right or three-quarters of the way right. We have to get this really, really right. Unless this is urgently and meticulously done, I have no doubt in my mind that the unsuccessful decades long constitutional imbroglio will persist. We must as a country learn from the 2005 referendum.

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