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Why the ruling coalition must heed calls for national dialogue now

ANYANG' NYONG'O
By Anyang Nyongo | January 11th 2015

Former Vice President Stephen Kalonzo Musyoka did not mince his words. While eulogising the late Fidel Castro Makarios Odhiambo Odinga, Kalonzo appealed to Kenyans to emulate the life of Fidel and reach out to each other irrespective of ethnic identity, political affiliation or regional origin.

Having had friends and business colleagues across the ethnic and political divide, Fidel was the true example of a Kenyan; and we need such Kenyans at this point in time to dialogue on the major issues that divide our nation notwithstanding the new constitution.

If indeed that was the feeling of Kenyans gathered at that funeral service on that eighth day of January this year then, according to Fidel’s mother Mrs Ida Odinga and his uncle Dr Oburu Odinga, Fidel’s life should be used positively to bring Kenyans together through dialogue and unite our nation.

His Excellency President Uhuru Kenyatta agreed: he was more than ready to engage the nation in this dialogue. But what exactly should Kenyans dialogue about?

First: we have a constitution that has gone a long way to make provisions to safeguard our human rights, ensure the rule of law and create appropriate institutions for good governance and the fair distribution of national resources and opportunities. The Constitution has also created two levels of government thereby substantially changing the nature of political power and its use at the national and county levels.

Kenyans will never go back to over centralised government: Devolution is here to stay. But devolution has come with its own problems which need to be addressed. Must we have 47 counties with the heavy burden they put on us regarding administrative costs? Or should we reduce the number to 18 as was suggested in the Bomas Draft Constitution? What educational qualifications should our MCAs have?

Second: While adopting an American-style form of government, we failed to fully embrace the governance architecture of this form of government for it to work effectively in our context. Our Legislature is poorly designed and hopelessly dysfunctional. That we have two houses of Parliament without specifying any hierarchy in law making, verification of public appointments and review of legislation is a complete mockery in the design of a bicameral legislature. Since there is a Senate as an Upper House in our system, let it be properly designed as such and not be left as a replica of the House of Chiefs somewhere in Southern Africa.

Third: The most beautiful thing about the US judicial system is that the highest court of appeal, the Supreme Court, is designed to be the last port of call in the pursuit of justice by any individual, institution or the government itself.

The fact that the Supreme Court justices are appointed for life gives them independence and autonomy from undue external influence. In our case, the retirement at 74 years of age has the potential of compromising the independence of the Justices to the detriment of discharging their duties independently and justly. We need to seriously dialogue on this issue: what kind of Supreme Court do we want? I would support going full swing to appoint the justices of the Supreme Court for life the American style.

Fourth: A presidential system of government based on “winner take all and first past the goal post” Westminster model of government is an extremely inappropriate form of government in a culturally diverse developing society like Kenya. It has been our problem since independence and it will remain our problem now and in future if we do not reform our Constitution urgently. It promotes ethnic division in our fledgling nation and is a fertile ground for the politics of exclusion.

The proposal I have made before and I will continue to make is that we should have a happy mixture of proportional representation and constituency representation in our legislature. But our government should be formed on the basis of proportional representation and inclusivity.

In other words parties should be represented proportionally in government on the basis of the number of votes received at a general election. The majority party or coalition of parties provides the Prime Minister as leader of the government in which all parties are represented. This will improve the politics of inclusion while it does not necessarily compromise the role of Parliament as a watch dog institution.

Finally, as long as we have incumbent regimes bent on using the Electoral Commission to “fix” elections in their favour it will be impossible to institutionalise free and fair elections as means of establishing legitimate governance in our nation. The cure for this mischief is not to plead with incumbent governments to benevolently provide for free and fair elections; no. The cure is to remove any temptation of creating government through rigged elections. The presidential system is the one most prone to this. The alternative we have provided for above will create more possibilities for effective Electoral Commissions as well as free and fair elections.

The system of government we have today creates the culture of circulating grievances every five years. In other words, any party or coalition of parties which wins elections will govern while the losers remain aggrieved for five years. In the event that losers in one election become winners in the next the grievances will simply circulate.

This is a recipe for perpetuating the politics of acrimony and not the politics of consensus building and national integration. These issues cannot simply be wished away: they need to be discussed with the view of improving our system of government as in the subject matter for our national dialogue we have today proposed. May the good Lord rest Fidel’s soul in eternal peace.

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