Why Jubilee party should take its foot off the gas pedal now

Captain Edward Smith went down in history as the man at the helm of the Titanic luxury cruise ship when it sunk in the North Atlantic Ocean on that fateful morning of April 15, 1912.

It was unacceptable that the ship could hit an iceberg and disintegrate, all because the inebriated captain neglected to heed weather warnings. If the number of lifeboats, at 1,178, indicated the ship's capacity, it was gross dereliction of duty that allowed it to set sail from Southampton headed for New York City with 2,224 people on board. Historical accounts place the death toll at 1,500.

Despite advanced safety features; watertight compartments and watertight doors designed to keep water out, the furthest thing from the ship designers and builders’ minds was that it could hit an iceberg and break into two.

Given the current combative political posturing, Kenya has become the contemporary Titanic under Captain Uhuru Kenyatta, resolutely headed for an iceberg with close to 45 million people on board.

The watertight compartments and doors that are our constitution, laws and institutions could be as useful as the Titanic’s safety features if the moment of implosion comes.

Bad side

The nullification of the August 8 presidential election exposed a side of Uhuru Kenyatta many did not know about. The amiable gentleman has since blown his top.

He went on a tirade against the Judiciary, employing the most undiplomatic language that would have landed a lesser privileged person a date with the obnoxious police or toothless National Cohesion and Integration Commission, but he is the President.

The Jubilee-dominated Parliament took cue and is on the offensive against existing electoral laws and the Supreme Court. An interesting aspect of that ‘judicial coup’, as the Supreme Court’s ruling has come to be known within Government circles, is the overnight birth of clueless constitutional law experts. It is grating listening to some of them on television, so one has to learn to bear with the romantics.

Nevertheless, I have this sneaky feeling none of the belligerent loudmouths on both sides of the political divide know about the very instructive Federalists Papers, co-authored by Alexander Hamilton, John Jay and Jameson Madison between 1787 and 1788.

They give an in-depth analysis of the great American Constitution at the time of its formulation, the pitfalls therein and how to go around some of the sticky issues. Particularly, they examine the relationship between the Congress and the Judiciary, giving reasoned arguments why more power should be vested in the Judiciary than the Congress.

One sided show

We have seen Jubilee, even as Parliament is yet to form House Committees in accordance with the law, rush to form ad hoc committees that are wholly a Jubilee affair to clip the powers of the Supreme Court and amend electoral laws for the simple reason the laws were used by the Supreme Court to annul Uhuru’s re-election. Our parliament is incompetent, no doubt.

Consumed by hegemonic wars, it has abdicated its primary role. It did not just allow itself to become the Executives’ lapdog, it has never distinguished itself in any way; passing laws it falls over itself trying to repeal when they fail to fit the tenon and mortise design.

Too much power is vested in Parliament, yet it is ill equipped to handle it. To some, like Aden Duale, Parliament offers the means to ride roughshod over public officers. It is a place where those who do not toe the Executive line are guillotined, the best examples being the Dr Monica Juma, Charity Ngilu and Kazungu Kambi cases, among others.

Hamilton argues: “From a body which had had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application.” Further, and rightly so, he says that the legislature is liable to be divided by political factions, making it even less likely that it will act impartially in deciding legal matters.

This is the point at which we are today; all the more reason why Jubilee's impulsive plans to amend electoral laws should be shelved until sobriety returns. The divisions in our National Assembly are so sharp nothing worthwhile will be coming out of it for a long time to come.

For long, the Executive has endeavoured to unduly influence the legislative arm of Government to come up with policies and to enact laws that violate the Constitution and individual rights. There is proof of this in the Security Laws (Amendment) Bill 2015 and the Media laws.

The only way citizens’ rights can be guaranteed is to have a Judiciary that protects them against the people in Government who endeavour to undermine their interests. Thus, attempts to create a pliant IEBC and Judiciary are anathema and must be resisted.

Mr Chagema is a correspondent at The [email protected]