Harmonised Draft is Kenya’s hope for a new beginning

By Kenneth Gituma

Before the launch of the Harmonized Draft Constitution of Kenya, I was sceptical whether the draft will be able to provide the constitutional solution that this country so urgently needs.

However, after going through the draft several times, I feel it addresses the interests of the nation and its peoples, the challenges of under-development and the need to have adequate controls of State power to ensure Kenya starts on the path of economic, social, political growth and development.

Much of what has been canvassed about the draft — even by some very good minds — is nothing more than an expression of fear and uncertainty about change. It is always more comfortable to retain the status quo.

I wish to highlight some of the truly positive things the draft has captured and some of the opportunities for improvement.

Firstly, if a party gets majority seats in Parliament, it means the voters are impressed by its policies, manifestos, compaign pledges and the character and leadership qualities of its candidates. The party with the largest number of MPs, therefore, must be allowed to implement its policies, manifestos and campaign pledges by having its leader take the mantle of leading government as PM. This is the practice in India, Italy, Israel and South Africa. It is also imperative that State power be distributed for it to be used for the service of the country and not for the benefit of a few.

Public revenue

Secondly, it is commendable that the draft prescribes the distribution of public revenue. This will help re-distribute national resources equitably and consequently narrow the gap between the rich and poor areas.

Thirdly, the number of ministries that any government can have has been tied to between 15 and 20. This will help check public spending.

Fourthly, the Bill of Rights is so expansive and exhaustive that after I read the relevant articles I felt a sense of security to live in a country with so many safeguards in its supreme law.

Fifthly, the articles on freedom of media, access to information, freedom of expression and so on will tremendously enhance these freedoms and improve accountability and openness in government and society.

I now turn to some of the weaknesses, shortcomings and omissions. Article 165(3) says the following about validity of a presidential election. "The constitutional court shall, within 7 days of the filing of a petition, hear and determine the petition and the decision shall be final".

To successfully challenge a flawed election (or defend a fair one) a litigant requires to collect evidence from all over the country. For the court to determine the matter fairly, more time is needed. I propose that this period — and that of swearing-in of the new president — be extended to 3 months or at least one month. We should never allow a repeat of the chaos of the last presidential election.

Article 209(6) reads "The jurisdiction of a Kadhi’s Court shall extend to the determination…" Let the CoE insert the word ‘only’ between ‘shall’ and ‘extend’ for the article to read "The jurisdiction of a Kadhi’s Court shall only extend to the determination…" This will prevent the possibility of someone trying to extend the mandate of the Kadhi’s Court beyond marriage, divorce and inheritance.

The Ethics and Anti-Corruption Commission should be given prosecutorial powers. There is no need to give this Commission huge cash outlay and deny it power to take suspects to court.

The draft should clearly and without ambiguity state the date the first General Election will be held under the new constitution.

In Article 174(2) the percentage votes in the National Assembly to validate nomination of Deputy State President in the event of a vacancy in that office is not indicated. The CoE should indicate this threshold.

Finally, The CoE should ensure the views of Wanjiku bear equal weight to those of any member of the current government. In addition the CoE should be steadfast to avoid deviating in any substantial way from this original draft. It will surely get the seal of approval at the referendum.

—The writer is an accountant and businessman in Nairobi.