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The Harmonised Draft Constitution is a historical leap of no mean feat in so far as the search for a new constitution is concerned.

It heralds a new phase in the quest for a new constitutional dispensation responsive to the needs of Kenyans.

Suffice it to say the road to a new constitution has been long, winding and painful and has been strewn with obstacles and challenges of debilitating dimensions.

As a result there have been injuries, loss of limps, loss of careers and loss of lives.

Indeed, a careful appraisal of the struggle for constitutional reforms confirms that there are more dead heroes than are alive today in as much as there are opportunists and vestiges of modern-day colonialists.

The launching of the Harmonised Draft Constitution marked the commencement of 30 days of public engagement.

During this period, Kenyans are impressed upon to analyse, debate as well as generate substantive dialogue around the draft constitution ostensibly to consensus and harmony around issues.

The period therefore provides a special opportunity for us to refine the draft constitution by making proposals on possible amendments especially on sticky issues.

It is therefore a special period for national reflection on how to make the best constitution out of the draft constitution.

Allow me to observe in the very words of Martin Luther King Jr; "History has thrust upon our generation an indescribably important destiny — to complete a process of democratisation which our nation has too long developed too slowly, but which is our most powerful weapon for world respect and emulation.

"How we deal with this crucial situation will determine our moral health as individuals, our cultural health as a region, our political health as a nation, and our prestige as a leader of the free-world".

I am increasingly convinced that the harmonised draft constitution is a bold step towards the completion of this sacred assignment and how we deal with it will fundamentally determine the shape and content of our collective future as a nation.

There is every need therefore to internalise its content with honesty and utmost sense of sincerity and strict fidelity to the common good of the people of Kenya.

Indeed hindsight will reveal the critical value of the emerging spirit especially in so far as the concept of power and the need to de-mystify it so as to anchor and underscore the inherent value of service and advancement of the public good.

Constitution making is about building a united nation and a common identity hence the need to step forward together as one people and one Kenya by clasping our hands together in all the things that are essential for our mutual progress.

Re-discovering our identity constitutes an inescapable imperative in constitution making and lies at the very roots of a new dispensation.

We are where we are as a result of reckless denigration of our national identity through systematic erosion of shared values and principles. This has led to the sacrifice of Kenyanness at the altar of parochial considerations and related prejudices.

It is increasingly annoying to hear people and even leaders' comment on the harmonised draft constitution on ethnic, class or sectional platforms.

Nothing can be more redemptive than the discovery of Ukenya or simply our Kenyanness during this period of substantive dialogue and debate on the harmonised draft constitution.

Again, paraphrasing Martin Luther Jr, we are in an era where we are called upon to raise certain basic questions about the whole society.

We are still called upon to give aid to a beggar in miserly and agony on life's highway just as we are disturbed by the deteriorating conditions of life as well as loss of value for human life.

Is it not high time we asked ourselves whether an edifice which produces beggars and dehumanises people must not be reconstructed and refurbished so as to afford value and develop the potential of every citizen? In my view that is where we are now.

The reason we must collectively rise from the quicksand of prejudices, biases and stereotypes to the very higher levels of reason, sincerity and objectivity.

Indeed we can make the best constitution out of the Harmonised Draft Constitution. God bless Kenya.

Ochieng M. Khairalla comments on topical issues.

I cannot be persuaded that the only important constitutional issue in Kenya is the executive powers of the President or the Prime Minister.

In the same vein, nobody can convince me that a duly elected popular leader must be the one to wield executive power just because, he is elected by the people. If that were the case, Hitler's popular vote did not prevent him from carrying out genocide in his own country.

Let the media give , Kenyans a break so that they can debate this draft with sobriety. Let it not be a PNU-ODM, Kibaki-Raila contest. Kenyans are past that. They fought a bitter war in 2005 and both sides lost. They repeated the same fight in 2007 and again, both sides lost. That is why both sides are in a coalition. Nobody won the elections. It is therefore pointless to incite the public or different ethnic communities to begin viewing the draft in terms of Raila or Kibaki.

The two leaders will be history in 10 years just as Moi is today. Moi scuttled the constitution process in November 2002 thinking that without it, he would influence politics. Today, he is a spectator.

Let Kenyans zero in on aspects such as a devolved government, two chambers of Parliament, a recall clause for MPs and the right to education for Kenyan youth.

Let them entrench anti-corruption law into the constitution so that whoever steals public funds will be violating not just an Act of Parliament but the fundamental law of the land.

Let us entrench an oath by which elected leaders will swear that they will not steal public funds and that they will set examples of good citizenship by paying their taxes instead of hiding their incomes in sitting allowances.

The draft constitution under the Bill of Rights proclaims that every child will be entitled to free and compulsory primary education.

This is good but let the constitution go further and clearly state that "Every Kenyan child will be entitled to free education up to the maximum that their academic ability can take them and that the state will guarantee them this right".

On the Cabinet composition, the draft has not gone far enough.

Twenty members of the Cabinet for a tiny country like Kenya are extravagant and ill-conceived. Now that we are proposing a three-tier,government just like the US, we don't need too many Cabinet ministers because most of the government will be in the regions.

In the US, a country of 50 states and 300 million people, the Obama administration has less than 20 federal cabinet ministers. India, the largest democracy in the world with a population of 1.9 billion people only, has 19 Cabinet ministers.

In my opinion, eight Cabinet ministers, one from each province, would be the ideal situation in the next dispensation.

Let us be candid about Cabinet. The reason we have a dysfunctional government is because every Tom, Dick and Harry who gets elected to Parliament expects to fly a flag back to his or her village. Those left out start whining. The new constitution gives us a chance to bar elected MPs from serving as ministers.

We need technocrats who have no allegiance to village constituencies to serve as our ministers. MPs must relinquish their seats as MPs once they are recruited into the Cabinet. It is the only way we will have true separation of powers.

It is good the draft constitution strives to embed press freedom so that past situations where media houses have been raided for one reason or another do not recur.

However, freedom of speech should never be allowed to extend to those that will abuse it by engaging in oral sex on our airwaves. The only way these pornographic broadcasters can be allowed to operate is to deny them free-to-air licences. They have to be confined to subscriber-based cable channels so that their clients can pay to watch.

On broadcast frequencies, the current multiple holders must appreciate that internationally, frequencies allotted to each country are regarded as national assets just like oil, minerals and other natural resources that must equitably be distributed among first, Kenya nationals before foreigners are considered.

Therefore the rule of one frequency one broadcaster must apply so that diversity in thought is maximised.

The current situation where one broadcaster can hoard up to 60 frequencies for speculation purposes must be disbarred in our constitution.

Jerry Okungu is a media consultant.

STAREHE MP Bishop Margaret Wanjiru yesterday con-firmed alterations in figures in the Electoral Commission of Kenya tallying documents forms 16A and 17A.

The alterations were in her favour.

The ECK file containing the altered documents was handed over to Bishop Wanjiru by Justice Kariuki Kihara during the hearing of the election petition filed against her by former Starehe MP Maina Kamanda.

Lawyer Kioko Kilukumi representing Kamanda who was cross-examining Wanjiru had pointed out the alterations.

The documents were shown to Wanjiru and she confirmed that indeed, there were numerous alterations in the tallying documents.

The court heard that the original elections results were concealed by use of white-out and new figures inserted. The alterations were found in almost all the pages of the forms 16A and 17. The other alterations were done by hand where the original figures were rubbed and new ones entered.

Wanjiru testified that she did not know who did the alterations.

Lawyer Kilukumi told Wanjiru that she bribed ECK officials to alter the documents and that she became MP through substitution of election results.

The assistant minister de-nied the allegations levelled against her.

"Your honour my answer to the claim is no," Wanjiru said.

Earlier attempts by Wanjiru to block the viewing and production of a video clip where she had been captured saying that the election process in the constituency was marred by rigging and irregularities' hit a snag when the court disallowed the application.

Justice Kihara ruled that copies of the video clip will be supplied to all the lawyers in the election petition. The video tape was replayed several times in court.

The petition hearing continues.

By John Korir

Statement by Secretary Clinton on Kenyan Consideration of a New Constitution

Washington, D.C.

December 1, 2009

“The United States welcomes the publication of the new draft constitution by Kenya’s Committee of Experts. On my visit this summer, I urged Kenya’s people and leaders to move forward with the reform agenda that is so important to Kenya’s future. I am pleased that they have taken this step, which represents a major milestone in that process.

I encourage all Kenyans to use the 30-day comment period to engage in a constructive and substantive dialogue on a new constitution. This is an opportunity for the Kenyan people to help determine the content of the constitution and come together to build a system of government that serves and protects the interests of all, regardless of political affiliation, ethnic group, or faith.

This is also a time for President Kibaki and Prime Minister Odinga to demonstrate their leadership and commitment to a peaceful future by working together to support a constitution that will serve the national interest for generations to come. I hope Parliament will act expeditiously, and with a sense of shared purpose, when the draft is formally presented to it.

The United States is committed to supporting the Kenyan people’s efforts to implement their reform agenda. Development and ratification of a new constitution will provide a solid foundation for a more peaceful, prosperous, and democratic future.”

For more information, please contact Lindsay Mize at (202) 777-3540 or lmize@clsdc.com.

This material is distributed by Chlopak, Leonard, Schechter & Associates on behalf of the Office of the President of the Republic of Kenya. Additional information is available at the Department of Justice, Washington, DC.

One of the most fundamental questions that the cabinet and by extension, the entire country is grappling with is whether Parliamentary Watchdog Committees are overstepping their mandate through their constant erection of roadblocks on the path to implementation of government policy.

The Prime Minister thinks that an overbearing parliamentary watchdog is an impediment to the proper functioning of the cabinet, so do a host of other cabinet Ministers. However, the speaker and members of parliament think otherwise.

They opine that it is rather the disjointed cabinet and the political intrigues surrounding it coupled with its expediency and ineptitude that has naturally inspired the parliamentary Watchdogs to fill the resultant void.

I entirely agree with the speaker of the national assembly. Suffice to say that Cabinet Ministers have totally forgotten the import of collective responsibility as a cabinet. In fact, cabinet has become the biggest stumbling block to government`s the government`s reform agenda. The term collective cabinet responsibility is akin to hybrid seeds planted in unhealthy soils to the majority of cabinet ministers.

Collective ministerial responsibility entails three principles: the confidence rule, cabinet solidarity, and cabinet confidentiality. These principles help ensure that the cabinet pursues a policy consistent with the priorities of the country.

In our Coalition Government, the president and the PM form the Cabinet by appointing members of Parliament as ministers to direct government ministries. The president, the PM and cabinet ministers thus propose laws that become the basis for public policy.

The confidence rule is obvious. Without the cabinet having confidence in each other, then the import of having a cabinet ceases. Let me therefore dwell in detail on the remaining two principles. Perhaps the most fundamental pillar of collective ministerial responsibility is cabinet solidarity.

Here the cabinet ensures a unified stance in everything it pursues. Granted, cabinet ministers can disagree but only in the privacy of the Cabinet. However, once a decision is made, they must loyally support and defend the government’s position or resign.

Moreover, individual cabinet ministers must not announce new policy or changes in policy without the Cabinet’s approval. They must carry out cabinet-approved policies with respect to their own ministries, whether or not they agree with such policies. Finally, they are expected to vote with the government always.

The President and the Prime Minister must always therefore enforce cabinet solidarity. In the event that dissenting voices emerge from the cabinet then the President in consultation with the PM, he can ask ministers to resign. In case they refuse to resign then the president can sack them.

The the other important aspect of the cabinet that is part and parcel of collective cabinet responsibility is confidentiality. Ministers swear an oath to protect cabinet secrecy. Documents used to support cabinet decision-making are highly confidential, and any public servant who discloses cabinet secrets can be imprisoned.

However, of late, things have gone haywire. Non adherence to the policy of collective responsibility has seriously undermined the working of the cabinet. Very little or none of cabinet solidarity, confidence and confidentiality have been seen. Cabinet secrets and documents have increasingly found their way to the public domain. Obviously, some disgruntled elements within the cabinet are behind this leakage.

The division in the cabinet has reached parliament with every minister with political clout manipulating legislation for his or her own ulterior motives. Take the stand off between the PM and his erstwhile ally William Ruto, the Minister for Agriculture; there differences have spiraled into parliament with a section of the latter`s supporters threatening to move a censure motion to settle political scores with the former over the Mau eviction saga.

This country decries a weak cabinet. This is because a fragile cabinet can never deliver the crucial agenda four reforms that the country urgently requires. It is time that the cabinet owned up to its mistakes and agrees to give this country a new beginning. For in the words of Cardinal de Retz (1617-1679), “The man who can own up to his error is greater than he who merely knows how to avoid making it.”

Tome Francis
Bumula Constituency

We saw them jostle for space on the “high table.” And from this high table, vitriol flew high left, right and centre as if the speakers were competing to see whose vitriol would tickle the most. Vitriol kept flying high even from unlikely quarters like the Deputy PM Uhuru Kenyatta.

And to think that he could even quote the Holy Bible to wash the vitriol down our throats! Evidently, the poignant atmosphere in the circus of a fundraiser was punctuated by cheap bursts of prolonged laughter from all those gathered. The unmistaken message of such laughter was to make those in attendance realize one`s presence.

Honorable Najib Balala, the cocky Mvita MP and the self styled Minister for political tourism capped it all by stating that those on the high table were the future of this country. In other words, those not on the high table, even though they were present in the fundraiser, they were not part of the future!

Among those present in the fundraiser but not on the high table were the likes of Honorable Eugene Wamalwa, the Saboti MP who many across the political divide thought that he epitomized transformational leadership.

However, going by Balala`s sentiments, then the youthful Wamalwa is apparently, not part of the future political leadership of this country. I thought that he got the drift, but no, like the rest in the crowd, his laughter and clapping told a different story. So what became of his budding presidential ambitions?

Has his new found company dissuaded him from pursuing his ambition?

I know that I have no right telling him who to walk with, for deep down in my heart, I know that like the iconic Nelson Mandela`s rejoinder to Bill Clinton, he will quip: “let me choose my friends as you choose your enemies.”

But I will not tire for I will find solace in the aphorism of the erstwhile Kimilili MP, “if one walks like a duck and quacks like a duck, then he must be a duck!” Through Wamalwa`s body language we now know his bosom friends.

Has he not been spotted from time to time snuggling in the company of the same youthful political tourists, opportunists and slanderers who are busy casting their ethno-political net wide and far? Their political intrigues and the display of expediency coupled with sheer ineptitude among these political tourists, nay “transformational leaders” threatens to vanquish the very future that they are preaching to the youth.

Could be that they take advantage of the youth being the age of credulity?

Someone needs to tell Honorable Wamalwa pretty fast that if he does not re-examine his conscience, his well guarded personality and his razor sharp brain risks decomposing in the company of trivial personalities.

It is not surprising that of late, his rhetoric is increasingly portraying him as having completely nothing in common with the youth nor does he currently have a wee bit of understanding of the youthful generation that he purports to be the voice of. He leaves us with so many questions unanswered.

How can he be part of those telling the youth that the Government of the day must reward cheats who invaded the Mau Complex and in the same breath promise them a brighter future under his watchful custody! Why is he part of a clique that has become a stumbling block in the Mau Complex conservation efforts?

How can he be part of those whose Solomonic wisdom is to rise to the helm of this country`s political leadership through tribal alliances? How can he be in communion with a clique harping on transformational leadership even though their actions and inactions portray them as bullies and opportunists who are pennywise but pound foolish? Just who will be the gad fly to sting honorable Wamalwa back to reality?

Tome Francis
Bumula Constituency

A fortnight ago, honorable Joshua Kuttuny reminded all and sundry that Rift Valley legislators have numerical strength in the tenth Parliament and could therefore “do something.”

It now emerges that “the something” he was referring to was a vote of no confidence against the Prime Minister. This is the standard practice in many democracies around the globe. Parliament uses this arsenal with a view to checking on executive misconduct, or its effect, especially if the official`s unbecoming behavior subverts the structure of government or undermines the integrity of the office or the Constitution itself.

So if there is sufficient proof that a government official is behaving in a manner grossly incompatible with the proper function and purpose of the office or that he employs the power of his office for an improper purpose or for personal gain, then a vote of no confidence comes in handy.

In Kenya such a threshold is seemingly non-existent. It may well be that a section of the political divide may invoke this power simply because they do not like one`s nose. This lacuna may seriously undermine the integrity of the office of the PM.

For instance, a look at section 4b of the National Accord and Reconciliation Act, 2008, states that “the office of the Prime Minister shall become vacant if the National Assembly passes a resolution which is supported by a majority of all the members of the National Assembly, excluding the ex-officio members, and of which not less than seven days notice has been given, declaring that the National Assembly has no confidence in the Prime Minister.”

From the foregoing it is apparent that the grounds for the vote of no confidence are conspicuously missing hence leaving this crude weapon to become a matter of political judgment. I bet this is akin to a demented old sucker monkey holding a loaded gun.

But how honest are the politicians behind this vote of no confidence? You see, the Prime Minister is simply supervising the implementation of that which the cabinet and parliament agreed to.

I thought that it would have been the failure on his part to implement the government`s decision that would have engendered a vote of no confidence against him and not the other way round. Moving a vote of no confidence against the PM based on a reality constructed on pure lies will most certainly prove counter-productive.

Those bent on exploiting this provision must know that since the Mau eviction exercise has the blessings of the entire Parliament and Cabinet, then the vote of no confidence must be against the Parliament and the Cabinet. In other words, they must move a motion that seeks the entire Government to resign, or seek a parliamentary dissolution and request a general election. Which Member of Parliament is ready to shoot himself in the foot now? Yep, you guessed it right. Not one among them will dare do that.

Our legislators must re-examine their conscience. They must know that reason why the eviction process is going against the United Nation`s conventions on human rights, is because of sabotage by the line ministries and not as a result of the gross incompetence of the PM. We are aware of the fact that the PM does not have the powers to dismiss the ministers responsible and the president has not shown any indication that he is about to do that. The vote of no confidence must be moved against the saboteurs of Government`s noble plan.

Tome Francis
Bumula Constituency