Nzamba team should us debate draft without prodding

By Kamotho Waiganjo

Kenyans have exactly 25 days to propose improvements to the Harmonised Draft Constitution before it is surrendered to Parliament for final panel beating. Like most political processes, the voices that will get most traction during this season are going to be those of extremists on either side of the debate.

The ‘Yes’ extremists will demonise anyone who tries to question the suitability of any of the draft’s provisions. Doubters will be labelled anti-reformers, tribalists or any other tag that will cow them to silence.

The ‘Nay’ sayers on the other hand will righteously demonise the draft, converting even the most mundane anomaly into a massive conspiracy. This is what the Americans call Silly season.

Instead of pigeonholing, these 25 days ought be characterised by a ‘Yes But’ campaign. Yes because we must have a new constitution. And yes because the draft contains very progressive proposals that will increase democratic space and enhance human rights.

It boosts the role of women in all arenas of political life and affirms the rights of minorities and the marginalised. It brings back the ever popular recall clause for ineffective parliamentarians. It allows dual citizenship.

It constitutionalises devolution, transferring significant political and financial muscle to the grassroots. It promises a constitutional order that may well revolutionalise this country and transform it for the benefit of future generations.

The ‘But’ is because the draft also contains some problematic provisions. It limits human rights protections to persons professing the Islamic faith on issues of succession marriage and inheritance.

Even those like me who believe the retention of the Kadhi courts in their present state is supportable have a problem with constitutionalising discrimination on the basis of religion. It increases the size of the political bureaucracy at the national and regional level in ways that will compromise development budget.

It beats logic why the Senate needs more than 50 members. And why the National Assembly has 222 members, even before you increase constituencies. It introduces an inept law making process that will blockade legislation as the two Houses flex their political muscle. It fails to accommodate the youth in the country’s political life.

On the question of the Executive, the draft creates a parliamentary system with the added clumsiness of a popularly elected President. Anyone who has followed the recent history of the Ukraine, the country of the Orange revolution, will know the dangers of a contest between a popularly elected President and an equally powerful Prime Minister elected by Parliament.

What, for example, happens if the President refuses to appoint the Prime Minister’s Cabinet? In a boardroom the system may appear laudable but it is a recipe for chaos, especially in a country like Kenya which has severe fault lines not defined by ideology but by ethnic and regional coalescing. This issue is much bigger than a contest of wills between PNU and ODM. Whatever arrangement is finally negotiated must ensure accountability, efficiency and stability in the Executive. On these three principles, the draft fails dismally.

In any event, if we wish to have a president who has the maridadi powers that are contemplated by the draft, why subject the fellow to a gruelling campaign selling a mandate which he or she has no power to implement?

This may be a nuisance point, but in light of the dispute over Migingo, why do we have to leave the determination of our boundaries to international law? On this one I favour the 2003 Ghai draft which had all the territory co-ordinates set out in a schedule.

Remember that wars have been fought over territory. And finally, can the committee step back and let us debate this draft, supporting it so vigorously all over the media makes us wonder whether they will incorporate views they don’t agree with. Over to Kenya.

—The writer ([email protected]) is an advocate of the High Court of Kenya