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Another Katiba moment or just a case of greed and failed leadership?

By Patrick Muinde | August 30th 2020 at 11:30:00 GMT +0300

ODM leader Raila Odinga and Wiper Leader Kalonzo Musyoka and during a BBI rally in Kitui stadium. [File]

A decade into our new constitutional moment, the call to re-visit what was not so long ago hailed as the most robust Constitution in the world is growing louder by the day. This is leveraged under the famous March 9, 2018 Handshake that gave birth to the magical ‘9 points’ propagated as the silver bullet to sort the nations socio-economic and political historical problems.

I have seen several opinions on mainstream media over the past 10 days hailing the Building Bridges Initiative (BBI) propositions as noble. Many of these opinions have argued for a case of looking beyond the proposals for an expanded Executive in favour of the broader public good proposed on other sections of the report. In a nutshell, let us not throw away the baby with the bath water.

Unfortunately, these arguments to a large extent are a misrepresentation of facts if anyone takes an objective review of the BBI report against the sacred ideals enshrined in our Constitution. While we all agreed there were about 20 per cent of the issues that needed some ironing out in the run up to the constitutional referendum in 2010, I doubt if any of the issues flagged in the magical '9 points' was one of them.

If we flashback 10 years ago, the only contentious issues were those that pitted the political class, the elites and the civil society groups on the one hand against the religious groups on the other hand. Those issues revolved around the place of religion in the State and certain rights provided under the Bill of Rights. The tragedy of our generation and times is that profound issues that touch on the soul of the nation are assessed and evaluated purely based on which ‘political god’ one worships.

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The solemn questions that we need to ask are: one, are the perceived shortfalls in the implementation of the Constitution people’s/leadership problems or the problem of the law itself? Two, what are the economic implications of any change that we propose? Three, when we of the present generation exit from the stage, what will our children and great grandchildren think of us in relation to the decisions we are making today?

In line with my civic duties and responsibilities as a citizen, I went through the initial BBI report launched at Bomas of Kenya as advised. Drawing comparatives with the Constitution and reflecting updated proposals on https://www.bbi.go.ke, I am afraid to opine that BBI is, after all, about the positions and short-term political interests.

Navigating outside the legal jargon, we could draw comparatives between the ‘9 magical points’ and specific elements of the Constitution.

No national ethos

One, lack of national ethos: the preamble summons all of us, regardless of any official and personal predispositions, to uphold the highest standards of nationhood, honour and dignity both individually and collectively as families or communities in service to the nation and the people of Kenya. Article 10 defines national values and vests a solemn responsibility on all of us to uphold them in the exercise of the powers, rights and privileges conferred to us by the Constitution.

These values have since been translated into a national policy and code of values in public service. The Leadership and Integrity Act was to buttress these values. Unfortunately, the parochial political interests of the day watered down the high thresholds envisioned in the supreme law. So, other than the language semantics, one wonders what is new and innovative in this point.

Two, responsibilities and rights: Chapter Three and Four exclusively and unambiguously prescribes the rights and fundamental freedoms of every citizen. They also prescribe the mode to exercise and enjoy those rights and the limitations thereof. The fact that those conferred with State power bypass these constitutional rights and freedoms when it is politically convenient or choose to abuse the powers and privileges conferred to them can never be misinterpreted as a failure of the law itself.

Three, ethnic antagonism and competition: to defuse tensions on national elections, the Constitution exclusively provided for a devolved structure in Chapter 11; devolved resources to regions in Chapter 12; public service values in Chapter 13; provided modalities to strengthen and bring structure for political parties; and established constitutional commissions to address specific aspects that cause ethnic and unhealthy competition.

Shifting through the BBI recommendations under this point, one is left to wonder how the failure to appoint a substantive registrar of political parties for almost 10 years and failure of various arms of government to comply with principles of public service in public appointments becomes a constitutional failure.

Four, divisive elections: having been a systemic problem in the country since independence, the Constitution prescribed a simple, transparent and accountable procedure of representation of the people in Chapter Seven. It also gave the electoral body a constitutional independence and provided for enactment of legislation to govern the administration of the elections.

Therefore, the failure of the electoral body as a corporate to execute its mandate to the people faithfully and with integrity, and the choices of individual commissioners to abdicate their constitutional mandate to serve selfish political interests can never be construed as failure on the part of the Constitution.

The fact that there has never been any effort to bring those who failed on their roles to account is much more telling. It is curious how the creation of the office of the prime minister, renaming of job descriptions and reconstituting the commission can cure this deliberate and calculated systemic problem.

Five, inclusivity: this is clearly provided for in Chapter 13 on public service values, Article 10 and Bill of Rights.

Six, shared prosperity: the national anthem, the second national symbol under Schedule Two, makes a solemn prayer for shared prosperity. Devolution and public financial management practices provide the foundational pillars for shared prosperity.

Independent bodies

Seven, corruption: the Constitution established an independent body, enhanced the independence of the Judiciary and provided for legislation to end this vice. The failure of these institutions and the glorification of corruption through electing and appointing people of highly questionable character into public office can never be a failure of the Constitution.

Eight, devolution: we all agree this was the best part of the Constitution. The 35 per cent minimum sharable revenue proposed under BBI is of no consequence since counties are already receiving over 33 per cent of last audited revenues since 2013/14 financial year. The failure to allocate budgets to follow functions is an administrative failure and not a legal one.

Nine, safety and security: this was again specifically targeted under the Constitution. The failure of the security forces to reform and live up to their mandate cannot be said to be a problem of the law. The abuse of State monopoly to violence and failure to clean up the corruption vice in the system are Executive failure and not laws.

Finally, this time round the economic costs of the law cannot be a subsidiary issue in the ongoing debate. People’s and leadership failures must be isolated from national interests and public good. Only then can we stand by the thresholds of history to say our generation stood for truth, fairness and justice.

- The writer is an economics and governance expert


Law Review Constitution Referendum
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