Constitution is for the whole nation

By Ababu Namwamba

There is no doubt that as the review odyssey hits the homestretch, obstacles will become ever more pronounced. But we are closer than we have ever been, and the national momentum is more promising than ever before.

I feel we are living a very rare constitutional moment, and, as a generation, we stand upon a coveted historic epoch.

We have made commendable progress, but we cannot dare be complacent, for, as Yogi Bera, a celebrated American Baseball player, warns, even if you are on the right track, you will be run over if you just sit there. The lethal minefields we must deftly negotiate as we race towards the referendum include the bombshells mentioned below.

Devolution was one of the most hotly contested issues in Naivasha, and whose crafting was most delicately balanced. Under the Naivasha consensus, the PSC adopted two tiers of government, with 47 counties representing a single unit of devolution. This was to be backed by an innovative Senate as a lower House of parliament with a narrow legislative mandate limited to affairs of county governments.

While it adopted this compromise, the CoE fundamentally strengthened the hand of the Senate by handing it the critical power of impeaching the president. This has pleased some and upset others. Concerns are also being expressed in some quarters that minus regional governments, devolution will be a mirage, and further that sticking with 47 counties (the legal districts as at 1992) will constitutionalise marginalisation of distinct groups such as the Kuria in Nyanza and the Teso in Western, while also skewing representation.

On representation, the new configuration would saddle Kenyans with a 416-member Parliament, the largest, by far, in the East African Community. And that is before you answer to the cries for more counties, which would enlarge the senate even further. Let me disclose that in Naivasha I recorded my objection to this unconscionable burdening of the taxpayer. My argument then, as now, is that expansion of institutions of representation should be gradual and carefully measured against economic realities. Adequate representation, as an ideal, cannot be pursued in isolation of equally fundamental factors. But there are people willing to torpedo the review process, literally, in their pursuit of "adequate representation", which leaves this as a major sticking point. Isn’t it more prudent to set a cap on the number of parliamentary seats than to lock in a fixed number as the draft does? Is there compelling rationale in handing women 63 "special seats"? What becomes the role of the Interim Independent Boundaries Review Commission if the Proposed constitution locks up that which the commission has been mandated to do?

And contrary to some misleading media reports, the recall clause was never in contention in Naivasha. In fact, the PSC adopted the clause without any controversial debate. But there is now palpable excitement in some quarters about the exhilarating prospect of firing your MP midstream.

But there are also fundamental concerns on the potential instability that could introduce to the already highly volatile and unstable Kenyan political scene. Is Kenya ready to become the first emerging democracy (in Africa and elsewhere) to attempt to walk this path, and is it prepared for the consequences? Is the mischief this clause attempts to cure greater than that which it could create?

And if at all we are to retain the clause, should MPs be granted the carte blanche to decide how the recall mechanism is to function?

Separately, the major challenge with regard to the Judiciary is how to cleanse the corridors of justice and regain public confidence in this crucial State institution. The question that must be resolved is whether to adopt a radical vetting procedure that will see the entire cast of judicial officers step aside and go through stringent screening before readmission, or to use a more gradual rehabilitation through a revamped Judicial Service Commission.

If only we realise the constitution we are crafting cannot be for sectarian interests, not for ODM nor PNU, Kibaki nor Raila; not for the political class nor civil society; not for Christians nor Muslims; but a constitution for us all, collectively as a nation, then we shall cross that epoch and bequeath our generation and those of tomorrow a constitution that will unite us and provide a template for the renaissance of our land.

—The writer is Vice Chairman of PSC on Constitution Review.