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There can be no justification for Bill on the executive

By Kamotho Waiganjo | Published Sat, March 3rd 2018 at 00:00, Updated March 2nd 2018 at 23:34 GMT +3

The Bill by energetic Tiaty MP Kassait Kamket will be still born. There are at least four reasons why the Bill is headed for the Parliamentary dustbin. First is timing. The Jubilee government has stated ad nauseum that the season of politics is over; it wants to concentrate on development, under the ”Big Four” brand. It will not accept to be distracted by a political debate just after spending valuable months in high octave politics. In any case, owning the Bill may legitimise claims of its illegitimacy by suggesting there is a problem with the manner in which it got into office thus demanding major adjustment. At another level, a referendum at this point would introduce a dispute on the IEBC, with “Chiloba/Chebukati must go” returning to our lexicon. Who needs that?

On the NASA side, a motion by Jubilee at this point is immediately suspect. If NASA were able to resolve its other distraction; the ongoing sibling rivalries, it would prefer to focus on governmental redesign consistent with its objectives. It will not therefore join a bandwagon whose end objectives are not necessarily to improve its own political fortunes.

Subject to litigation

Secondly, finance. The Bill as drawn makes several proposals that will require it to be subjected to a referendum. It proposes to affect the exercise of citizen sovereignty by removing the power to vote the Chief Executive of the country from the sovereign; the people, to MPs. It also seeks to change the functions of Parliament. It seeks to extend the term of the President to seven years. All these are protected provisions that require a referendum before they can become law. Putting together a referendum will require huge budget outlays currently estimated at Sh20 billion. Which government at a time of austerity wants to fork Sh20 billion to resolve issues that are not germane to its success? And remember that the results of the referendum could be subject to litigation and knowing our courts, they could order endless repeats of the referendum at the cost of the Executive.

Third and fourth relate to the substance of the Bill. The Bill essentially proposes a fundamental refashioning of the executive. The one aspect of this refashioning that will meet major objections is the transfer of the right of voting the Chief Executive to the Honorable members. During the period leading to the Constitution 2010, I was privileged to go round the country collecting views of Kenyans on this very question. Wherever we went, Kenyans were largely agreed on one thing; they wanted to elect their Chief Executive whatever he/she was called. I believe this view if informed by a general mistrust of our elected representatives. We love our MPs just before elections but cannot stand them the day after. We definitely do not want them to decide who the CEO will be. Imagine if we pushed this to the County and MCAs were the ones to elect a Governor! No right thinking Kenyan would support such a proposal. At another level the fear of MPS being the ones who elect the Chief Executive is based on the historical inequity in constituency sizes. The reality is that our current boundaries inevitably discriminate some constituencies so that places like Lamu East with 18,000 voters would have one vote with Machakos with its 120,000 voters in electing a CEO.

Fourthly, the proposal seeks to return the executive to Parliament. Kenyans must not forget that the incestuous relationship between the executive and Parliament was the very reason we ended up with the current separated powers. Who, other than MPs, believes the current system is not functional because Ministers are not MPs? We must not forget that the executive ended up taking over the House since Members sat as both MPs and ministers. There can be no justification for this route. I could go on and on. My advise to the Honorable member, I have no doubt you mean well. But for now withdraw the Bill. There will come a time when you can re-introduce more worthy and well thought proposals. We ain’t there yet.  

- The writer is an advocate of the High Court of Kenya

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