It’s free for all as country lacks mechanism to guide law review
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While the Punguza proposals can be examples of specific mechanisms for fighting corruption, they are not the only ones. Other mechanisms exist currently or may be discovered in future. Accepting the Punguza approach to constitution-making would amount to accepting that each time an anti-corruption measure is to be considered, the country has to amend the Constitution. Further, the assumptions behind these proposals are misguided. The country does not have a problem of people convicted of corruption serving lenient sentences. Rather, the problem is that, for myriad reasons, people who ought to be charged are seldom charged or when charged there are no reasonable prospects of conviction. The point is that these proposals, as examples of so many that form part of the Bill, do not belong to constitutional law and cannot be included in the text of a Constitution.For More of This and Other Stories, Grab Your Copy of the Standard Newspaper.
Throughout its text, the Bill uses big words that should reasonably be explained but are not. The phrase “value for money” is an example. As a further example, the Bill declares that the Senate shall be the “upper house” but does not say what that means. An “upper house/lower house” designation exists in countries that have a two chamber legislature. There is no pre-assigned meaning of this terminology and the specific meaning of an “upper house” or “lower house” varies from jurisdiction to jurisdiction, partly based on whether it has a parliamentary or presidential system. Without explanation, the designation of the Senate as the “upper house” is meaningless. Ekuru Aukot, the force behind the Bill, has some status in the country. He served as secretary to the Committee of Experts that oversaw the drafting of the current Constitution. While Aukot now regards himself as some kind of constitutional expert, his flip-flopping during the 2017 election season revealed his opportunism and was hardly confidence-building. In the circumstances, his posture as the saviour of the country lacks credibility and this poor effort of a draft constitutional bill is evidence of the charlatanry that characterises his politics.SEE ALSO :Kalonzo takes firm position on BBI report
While the Aukot draft is bad, he is only a minor political player with a limited ability to do harm. However, the Punguza draft provides early warning that worse will soon come when the Building Bridges Initiative (BBI) rolls out its own constitutional amendments. The drafters of Kenya’s constitution must have thought that the threshold of a million signatures was a high enough bar against political demagoguery as a danger to the Constitution. The fact that Aukot could so easily scale that bar means that it will be child’s play for the better resourced BBI. As this pitiable Punguza Bill shows, there is no mechanism to ensure that draft constitutional provisions meet the most basic standards in terms of quality. During Kenya’s constitution-making process, the Constitution of Kenya Review Commission and the Committee of Experts served as such mechanisms. In the circumstances, it feels like open season and the country is not sure what kind of Constitution it will be left with, once all the politicians are done with inserting their hobby horses into it. - The writer is the executive director at KHRC. [email protected]Do not miss out on the latest news. Join the Standard Digital Telegram channel HERE.
