Uhuru, Treasury must respect Constitution

Last week Uhuru Kenyatta, Deputy Prime Minister and Minister for Finance and his technocrats at the Treasury acknowledged to amazement Kenyans that there had been a violation of the Constitution.

Why? Treasury did not submit for scrutiny the budget to the Parliamentary Budget Office within sixty days before presentations date as required by the Constitution.

The reason given by the minister is that at transitional period, it was impossible to comply with all provisions of the Constitution, a position we disagree with.

Why? The Constitution is the supreme instrument of our democratic governance and thus, no person holding any position of power, influence or authority can have a choice, on, whether or not to obey the constitution.

That choice is denied by the Constitution itself and invalidates any law so established by Parliament that becomes inconsistent with the Constitution.

Political expediency

Thus, it matters little, whether or not the legislators compromises and accept to live with the violation of the constitution for reason of political expediency.

In the end, the decision whether supported by a majority or not leading to a fiscal law would be challengeable for being a product inconsistent with provisions of the Constitution as long as the non-compliance remain uncured. Well, those from the legal profession characterised or referred as ‘learned friends’ shall certainly have a lot of grounds to argue on this question of constitutionality.

But, that being true, why the loud silence? Where is the Law Society of Kenya? Is it in limbo? How, then, can we unlock this Constitution violation budget impasse?

Firstly, while the Treasury avers that it is the spirit of the Constitution that matters at the transitional stage and not full compliance, it must not be allowed to pass unchallenged, as it sets a dangerous precedent. We face an extraordinary challenge and no matter the reason, we must hold those responsible to account and compel them to comply with the Constitution. No one should put himself in a position of conflict with the Constitution, no matter the position of authority or level of support, even with Cabinet, PM or President’s endorsement.

It is with due regard to the enormity of responsibility and expectations on custodianship of the Constitution, that, we require of all our leaders — to swear that they shall respect and defend the Constitution at all times.

That time of asking our leaders to lead by example is now, so who shall stand-up to be counted in defence of our Constitution?

Secondly, the Charles Nyachae-led Committee on Implementation of Constitution has warned of the non-compliance with Constitution by the Treasury and possible consequences. Many other leaders have spoken against the same, including the present and former ministers of Justice and Constitutional Affairs.

Bold legislator of Imenti Central, Gitobu Imanyara has not only spoken against violation of the Constitution but also asked the Speaker of the National Assembly to rule on the matter. Thus, that ruling by resolute Speaker, Kenneth Marende is expected this afternoon. Some Kenyans have also gone to court over the matter.

Collective wisdom

Whichever way the Speaker rules, it will not necessary be based on the political expediency of the hour given his well established track record on defending the Constitution and public interest. That, for now is a matter for everyone’s conjecture!

Thirdly, how Parliament cures Uhuru’s Sh1.15 trillion historic budget would depend on the collective wisdom of the House and direction of the Speaker. One thing, is however, clear: We must do what is right, not, because, we want to challenge Uhuru and his technocrats for the sake of it, but because the new constitutional order demand of us.

As a people, we had a reason for each and every provision in the Constitution. We cannot, therefore, condone any violation of supreme instrument of Governance in pursuit of a business-as-usual culture of impunity. It must not happen ever, or else we lose any respect for the Constitution as a governance instrument.

no populism

We must, however, not lose sight on the obtaining environment economic and political, though challenging, demands extraordinary policy and management interventions and solutions. It must not be a business-as-usual budget, but a budget that has an innovative rethink on fiscal and monetary policy reorientation measures. Next year is an election year and it can be tempting for any government and Finance Minister to present a populist political budgetary to bank on tomorrow’s Politics.

History has, however, taught us that populism is inconsistent with fiscal responsibility and discipline. The budget must, therefore, aim to build a stable macro environment to engender economic growth, stimulate savings, create employment, alleviate poverty and create robust long-term investments economic infrastructure, while assuring fiscal and monetary discipline.

As to the constitutional question, we must allow for time to scrutinise allocation and fiscal measures in the budget and satisfy the dictates of the Constitution, this is being a compelling matter of public interest!

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