Will Parliament as constituted deliver a new constitution?

By Gibson Kamau Kuria

After studying the Constitution, constitutions of democracies and international instruments such as the Universal Declaration on Human Rights, the Independent Review Commission (Irec), chaired by Justice Johann Kriegler, made this verdict in its report:

"The delimitation of boundaries in Kenya as presently established does not respect the basic principle of the equality of the vote.

The differences are unacceptable in terms of international standards. The Kenya legal framework does not establish, as is expected of international practice, the maximum departure from the principle of the equality of the vote. The delimitation is left to the ECK, which has not performed its role adequately ascribing its non-performance to Parliament’s reluctance to increase the number of constituencies."

On May 10, 2001, the High Court ordered ECK, in Hon Michuki Vs Attorney-General, to redraw constituency boundaries on the basis of one-person-one vote but it declined to do so. Instead, it filed an appeal in the Court of Appeal against the judgment.

PENDING APPEAL

The appeal is still pending. In 2008, the country experienced unparalleled violence because of dissatisfaction with the outcome of the electoral process. If we had relied on our institutions we might have avoided violence. In the same report, the Krieger Commission gave the following warning: "All political role players in Kenya should recognise that materially defective elections accompanied by public violence will remain a feature of life in their country absent of a concerted and sustained commitment to electoral integrity."

It is partly by making everyone’s vote equal in elections and during constitution making that electoral integrity is sustained. The country’s current constitution making process is not informed by this constitutional reality.

2010 is a defining year for the National Assembly because of the crucial role, which it gave to itself in December 2008 when it passed both the Constitution of Kenya Review Act and the Constitution of Kenya (Amendment) Act, which govern the ongoing review of the Constitution. The National Assembly wrongly dominates the process of review, which it established. The only choice, which Kenyans have, in law in 2010, is to either accept or reject the draft, through the referendum.

Many are no doubt asking whether in democracies this is the way the constitution is made. The answer is no. In democracies, people either elect those to draft their constitution and ratify it or those to draft it for their ratification through a referendum or other democratic process.

The domination of the process is not the only factor, which makes one worry. There are four additional factors.

Firstly, when passing the two Acts Parliament ignored completely the argument and recommendations of the Kriegler Commission.

STANDARDS

This commission ably demonstrated in chapters 2 and 5 of its report that the National Assembly is composed in a manner that offends the international standards contained in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Convention on Elimination of All forms of Racial Discrimination, the International Convention on Elimination of All forms of Discrimination Against Women and the Convention on the Rights of persons With Disabilities.

Put differently, the National Assembly as constituted is not democratic. It lacks constitutional power to draft a constitution for Kenyans without their express authority. Kriegler pointed out that Kenya’s constitutional and legal provisions offend these standards in that they do not give effect to the principle of the equality of the vote.

In December 2008, the National Assembly appeared not to realise that the process it was establishing would not turn Kenya into a democracy. In page 21 of its report, Irec made this recommendation to solve the problem of democracy in Kenya: "The right to vote and be elected at genuine elections be included in the Bill of Rights in the Constitution (Chapter Five) and that voting by universal and equal suffrage and secret ballot should also be guaranteed for all without discrimination. To go hand in hand with this is the right to citizenship, which is important and is not included in the Constitution."

Neither of the 2008 Acts gives effect to this recommendation. The logic raised in our current constitutional order is how our undemocratic institutions and constitution are to be fashioned to ensure that we have democracy? However, we have chosen not to ask that question for now. The specific question is how is an unrepresentative parliament going to midwife a democratic constitution? If the answer is in the affirmative which example do we have?

Parliament and its draftsman either did not ask this question or if they did, they answered it in a partial manner. The Committee of Experts has not considered it.

The second factor is self-interest in human nature. Given an opportunity to favour himself or herself, majority of people will do so. This is true of MPs. Because of this realisation the law has evolved a rule of natural justice, which forbids one from being a judge in his or her case.

Will Parliament acknowledge the force of self-interest as it audits the Harmonised Draft Constitution, which comes to it after it is drafted by the Committee of Experts and panel beaten by the Parliamentary Select Committee? Are we poised to see a rare opportunity when Parliament will be actuated by patriotism alone? In 2008, Parliament banished the Electoral Commission of Kenya through the Constitution of Kenya (Amendment) Act 2008 and established both the Interim Independent Electoral Commission and the Interim Independent Boundaries Review Commission. This amendment did not come with any democratic ideas.

The third factor is that according to section 8 of the Constitution of Kenya Review Act 2008, the review is to be undertaken by four organs namely: The Committee of Experts, the Parliamentary Select Committee, the National Assembly, and the referendum.

Three of these four organs are creatures of Parliament itself in different forms. Parliament gave itself adequate power to protect its own interests, which are incompatible with democracy.

The fourth factor is that the Committee of Experts, in its Harmonised Draft Constitution, did not include in the proposed Bill of Rights ‘the right to vote and be elected at genuine elections’. It also did not recommend that Parliament’s sole power under the Constitution to determine the number of the constituencies and their boundaries be taken away and vested in the Interim Independent Boundaries Review Commission. Constitution making power is called the constituent power and belongs to the people. The assumption, therefore, that making a constitution is like any other law making or legislative activity is manifestly wrong.

PEOPLE’S POWER

The people’s power to ratify a constitution necessarily includes their power to draft one through their elected representatives. To date they have not elected such delegates. Parliament has not and cannot demonstrate how and when Kenyans delegated to it or the Committee of Experts the power to draft a constitution.

Despite the Kriegler Commission ably demonstrating that our Constitution falls short of universal democratic standards, Parliament, which is not founded on the principle of one-person-one-vote, gave itself the power to establish the Committee of Experts to draft a constitution, which it has power to alter as it likes before arranging for it to be referred to a referendum. I would really love to see a democratic constitution facilitated by Parliament in 2010. The world’s constitution making history could be made in Kenya by Parliament. Let us wait and see.

The writer is an Advocate of the High Court of Kenya and a Senior Counsel

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