By Kamotho Waiganjo
I find it surprising that the Constitutional Amendment Bill before the National Assembly to remove MPs, Judges and Magistrates and County Assembly Members from being State officers has elicited only mild attention from Kenyans.
Even the demonstrators who caught the world’s attention by hauling innocent pigs to Parliament Road don’t seem to have realised that with this innocuous looking amendment, their battle will have been lost. MPs will now fix their salaries. Hey, and not just the MPs, even the County Assembly members will now fix their terms. Let the party begin!
This amendment has been presented by the Legal Affairs Committee ostensibly to “protect separation of powers”. If this matter was not so serious, this pedestrian argument would be hilarious. One assumes that in the view of this eminent Committee, calling MPs State Officers makes them subservient to the Executive.
I draw the attention of the illustrious Committee to Article 1 in the Constitution. It defines State organs to include Parliament the Judiciary and the County Assemblies. So Honorable Ladies and Gentlemen, you are officers in State Organs, hence you are rightly called State officers.
Having put that small jurisprudential matter aside, let us be clear, there is only one reason why this amendment is on the floor of the house, and it is salaries. One must however grudgingly admire our MP’s ingenuity. By drawing in County Assembly Members as beneficiaries of the amendment, they have ensured no counter initiative against the amendment through a citizens amendment can succeed; a citizens initiative would require support of at least half of the County Assemblies.
As for the Judiciary, conspiracy theorists would argue that it was an insurance policy so that any “ill advised” suit against the amendment would fail, since the Judiciary is a direct beneficiary of the amendments. I don’t believe that our Judiciary is open to that sort of cheap manipulation, but if that was the intention, wouldn’t that be the ultimate evil genius at work?
As the citizen watches this major assault on the constitution helplessly, it is essential that we understand its wider impact. Other than the explosion of the wage Bill as MPs and MCAs set their terms, it puts the Judiciary in a precarious position Since the JSC is prevented by the constitution from setting the remuneration of Judges and Magistrates, who will set their terms? Are we back to the Treasury determining the terms of judges? Won’t this be the greatest assault to separation of powers and independence of the judiciary?
There is also the matter of Chapter 6. This Chapter constitutionally requires certain ethical thresholds on all State officers, including denying them the right to open accounts abroad, for obvious reasons. By removing MPs, Judges and MCAs from being State officers, the Chapter will no longer apply to them. Actually once you remove these leaders from the application of Chapter 6, it might as well be deleted from the constitution.
Isn’t this Republic so predictable? In the 60s the constitution was continually assaulted in the interest of an autocratic Presidency. The motive today is the same, the only difference being the actors and beneficiaries. This time its the “people’s representatives” who are the main actors and the latest autocrats in town. As Alan Patton would say “cry this beloved Country”.
Its surprising the Executive is so quiet on this issue. Kenyans were very impressed by President Uhuru during the MPs salary debate when at the risk of losing precious political capital from MPs, the President unequivocally took the position that the Government would not support the demands by MPs.
Mr President, we need to hear you speak on this assault on the Constitution. It must not succeed under your watch. To progressive MPs, this travesty will require two thirds of you, including Senators, for it to pass. Its time to stand up and be counted.
As for the citizenry, if you sleep through this illegality, you might as well sit back, relax and enjoy the repeat of history as the constitution gets mutilated beyond recognition.
