Elections 2017

It’s free for all as country lacks mechanism to guide law review

The usual role of a constitution is to prescribe the principles of law, while leaving the policy choices to the political processes of the day. The Punguza Mizigo Bill, however, seeks to insert into the text of the Constitution, a set of policy choices that would better be the subject of day-to-day politics.

Picking on the fight against corruption, currently a topical political issue, the Bill proposes an amendment of the Constitution to provide that “past and present audit reports shall automatically be adopted to bar all adversely mentioned individuals from seeking and holding any public or state office.

” The Bill also, proposes that “an accounting officer or state officer whose office is cited on the annual Auditor-General report having not accounted for public funds or fails to prove value for money, shall be required to immediately vacate public office.” In another place, the Bill proposes life imprisonment for persons convicted for corruption and bars the exercise of presidential clemency powers on those. The Bill sinks into further problems by seeking to introduce provisions that “a corruption or theft of public resources case shall be tried within 30 days of arraignment…” Again, it is not clear what constitutional problem a provision like this is supposed to solve. One can guess that the Bill is concerned about delay in the trial of cases of corruption, which it tries to address by providing timeliness for the trial of such cases.

This unlettered prescription comes from the same political place that has concluded that the Judiciary is solely responsible for the failed fight against corruption. It is a conclusion that absolves the political leadership of its unmet responsibility in the fight against corruption, besides being another example of a provision that should not go into the text of the Constitution.

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.

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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.

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.

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]

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