By Billow Kerrow

A closer look at the draft constitution crafted by the Parliamentary Select Committee (PSC) in Naivasha reveals a document that falls far short of the expectations of the Kenyans, woefully incoherent and entrenches malevolent dictatorship in the long run.

With Committee of Experts (CoE) dependent on the PSC for a new lease of life later this month, it is highly unlikely that the defiled draft sent back to them will benefit from their expertise.

The pure presidential system recommended is impractical and provides a perfect camouflage for sneaking in imperial presidency.

In a country bedevilled by corruption, ethnicity, political patronage and impunity reign, the proposed system will simply provide enabling environment for the slide back to the 1970s and 1980s. Our institutions lack capacity and will to provide robust checks and balances, and unchecked power puts the president above the law.

Quite often, political expediency overrides objective decision making in the parliament, with the executive invariably disregarding recommendations, resolutions and/or directives of the House, with little or no sanction, not for lack of appropriate powers by the latter, but rather the interplay of party, regional, ethnic or political considerations.

The judiciary too lacks the will to challenge the executive and has its turbid history of kowtowing that has become its hallmark. Changes in the appointment procedures and financial independence alone will not wean it off the executive in a nation where intimidation and inducements are traditionally applied to sway their decisions.

MPs may vet cabinet and other senior appointments but do not have further recourse should these officers graduate into corrupt or arrogant elite. In the CoE revised draft, MPs could dismiss a minister through a censure motion approved by a simple majority. The PSC has simply got rid of that provision. Provisions for impeachment of the President are so onerous as to be impracticable. Even the provision denying the President immunity for crimes against humanity was removed to keep our presidents away from Hague!

In devolution, the essence of division of power and resources that provides self-governance at local level, capable of providing checks and balances to the exercise of power at the national level is now a distant mirage.

The so-called senate is deliberately incapacitated and rendered toothless, and is akin to the forum for regional authorities in the infamous Kilifi Draft.

The elimination of the regional tier denies the counties an essential forum for co-ordination, and protection from undermining by the national government. Yet, the retention of provincial administration at all levels will ensure that the national government remains effectively in charge of local governance. To add to the confusion, the counties will also have to contend with strengthened Constituency Development Fund run by MPs.

The all-important independent Commission on Revenue Allocation with the mandate of determining the basis of sharing revenue from national resources was struck out, and its role retained by Treasury. Treasury is part of the National government and it is not expected to fairly and justly divide resources between the various levels of government.

Treasury has historically used political patronage to allocate resources inequitably.

In the draft, the county governments will receive only 15 per cent of the revenue collected by the national government, based on the last audited public accounts approved by the Parliament.

That means, if this draft constitution comes into effect in 2013, the available audited accounts may be those of 2009/10, on the basis of which the 47 counties will receive a paltry Sh85 billion out of a potential expenditure of Sh1,000 billion. Will this sum be used for development, or salaries of public servants in the county? Why must we cap resource allocation to counties in the Constitution?

The marginalised regions will receive a grant of 0.5 per cent of the revenues, which amounts to Sh2.8 billion, to cover infrastructure projects in ‘health, water, roads, electricity and other necessary services’ ostensibly to ‘bring them to as nearly equal a state to the rest of the country as possible’. How will this money spread over a third of the counties reverse a legacy of deprivation and neglect?

The PSC also enhanced their chances of being re-elected in 2012, with the ballooning of constituencies. Despite the hullabaloo about one-man-one-vote and one-km-one-vote, a deviation structure that significantly disadvantages Asal areas, and limits the role of the IIBRC in boundary delimitation was sneaked in.