By Adongo Ogony
I don’t know if it is just me, but sometimes don’t people just feel like giving our MPs a good old whipping on the buttocks. You remember the type you got once in a while in those days when your dad/mum or the crazy teacher just couldn’t take any more stupidity from you. I am calling for mass flogging of our MPs at Uhuru Park. We will start with the PSC members who over the weekend schemed together to rob our country of the promise for a new democratic constitution. First on the flogging line will be Raila, followed by Muruingi then Ruto before we get to Njoki Ndungu. I don’t know what we will do with Nyachae. I would hate to ask an old man to remove their trousers and get a whipping, but it looks like we have no choice.
The reason I am bringing this whipping business with our MPs is that they lie to us today, we catch them, they retract and promise to do better then we turn around and they are lying again. I am talking about this obsession to make a constitution for Kibaki and now with Raila and his crew in tow. These guys keep telling us everyday that a constitution cannot be made for one man, in these case a bunch of aging politicians, then we catch them trying to sneak a quick one past us, they retreat and come up with the same old foolish plan. Enough.
Lets be clear about what happened in Naivasha at the PSC fiesta, which is reported to have cost Kenyan taxpayers a cool Kshs 10 million. Raila and his LDP people have agreed to shut up about supporting the Bomas Draft Constitution, betray Wanjiku and play ball with the big boys from State House. It is as simple as that.
The result is that the democratic people-driven constitutional process is effectively dead and buried. We have been hijacked in mid air by constitutional terrorists known as MPs. Where is George Bush when you need him? The entire decade of patriotic struggles for a new constitutional dispensation will come to nought or may be not if there is still some fight in Kenyans. This is a replica of the IPPG deal of 1997 when politicians, incidentally the same Kibaki/Raila combo, betrayed the campaign to usher in a new constitution before the elections. The politicians from all parties held their secret meetings and hatched up the fake and useless IPPG reform whose purpose was to sustain the constitutional status quo. What happened in Naivasha is the exact same thing except its implications are going to be much more profound.
The deal between the political parties is to take the Bomas Draft, mutilate it beyond recognition then come up with a bogus new constitution to sustain the system of presidential dictatorship and keep the one man rule going for the next twenty years or so until Kenyans get mad again and start another decade of constitutional wars. By then most of these folks will be dead and may be keeping Satan company in the bad house.
Finally the Kibaki people have struck a compromise with the Raila people with Kanu and the CKRC hanger-rounds cheering them on and we are being told the earth is flat once again and we should rejoice. Well these guys are in for a big surprise because Kenyans are going to see through their petty schemes and smoke them out faster than they ever imagined.
Their big promise to Kenyans now is that we will hold the 2007 elections under a new constitution. But they forgot to tell you two important things. One is that they don’t want the referendum held anytime soon because it might turn out to be a referendum on President Kibaki and his Narc team which has failed Kenyans in just about everything they promised to get elected including a new constitution in 100 days. So it is fine to float the vague promise of a new constitution by 2007. That is five years later than what the same politicians promised us in 2002. Why should we believe them now? The second thing they forgot to tell you is that with all the changes the MPs want to make to the Bomas Draft, Kenyans will end up with the same old constitution if not worse.
The dilemma the Kibaki boys have here is that they don’t want the referendum to be done in the middle of the Kibaki reign of confusion, particularly given the fact that Kibaki and his people told the CKRC one thing in 2000 while on the campaign trail and today say the exact opposite. There is fear that some cheeky fellas might develop a simple campaign of asking Kenyans, which Kibaki do they trust? The one of 2000 who wanted executive powers disbursed or the one of 2004 who wants all powers in his hands? At the same time they are terrified that come 2007 and Kenyans do not have the constitution Kibaki and company promised them, we will be ready to toss the Kibaki crew right into the political dustbin for lying to us and trying to con us again five years later. They are going to try to dance around that for a while.
I have been warning Kenyans for some time that we cannot trust politicians to give us a new constitution. In fact the biggest problem we have in the country today is this illusion that some government or leader will give us a democratic constitution. The mere fact that we have something called the Bomas Draft shows us that we have only been able to make progress when we fought the leaders not when we followed them.
The trouble with the Naivasha schemers is that they don’t understand that we cannot grab the Bomas Draft and remove chunks here and there and still have a comprehensive leave alone a new constitution.
Lets take the case of the Senate. The MPs say they have to squash that proposal because it is too expensive to the Kenyan taxpayer. I wish the MPs could have thought about taxpayers when they hiked their pay and benefits to the obscene levels they are today. Nobody is going to take the greedy bunch in parliament seriously when they start talking about saving taxpayers money. We know there are other issues at play. I have an idea. Why not cut the MPs pay in half and use the other half to pay the senators. They will still get about Kshs 400,000.00 per month with benefits. How many of them can even get half that in the real job market?
On the Senate issue, I for one think we don’t need it but we must remember one of its major objectives was to promote equity in political representation specifically to have more women representatives, although judging by the mercenary behaviour of our more famous women MPs I am beginning to wonder whether the elite bunch of women often nominated by the politicians really represent the interests of the working and poor women of our country, but that is another story. The proposed Senate required a designated women representation, which was seen as the only way to bring more women into the fold. If we do away with the Senate we have to come with another mechanism to still achieve the objective of enhancing women representation in the single National Assembly. That means we have to go back and negotiate with the women groups and civil society who made these proposals and come up with something acceptable to them. It is not a matter of what Kivutha, Njoki or Nyachae wants. Then we have to figure what other roles the Senate was meant to play and work around it.
For example the Senate was also meant to be a counter-balance for the activities and decisions of the National Assembly. The way this works in a place like the US is that before Congress passes a bill, they have to figure out if the Senate will approve it and that becomes a tool to moderate what the Senate does. So when we remove the Senate we have to come up with how we will be able to moderate the decisions of the National Assembly, which, has in the past put our country and peoples at great risk. We have to proceed carefully and avoid the cut and paste madness that the constitutional thieves of the PSC want to drag us into.
The ordinary Kenyans must have confidence that this is their constitution, otherwise we leave these people with no alternative but to mobilize support to reject the Wabunge Draft constitution and as unpopular as parliamentarians are I would advice them to be very careful. If they turn this into a confrontation between parliament and the wananchi things might get very dramatic. This is the dilemma these politicians are getting themselves into. Just because Kiraitu is in agreement with Raila does not mean it is the end of the world and everybody else is going to shut up.
Then we have the two centres of power myth. If our MPs think the Bomas Draft will bring a problem of the so-called two centres of power, they cannot just lock themselves up in the hotels and manufacture half-baked solutions. The Kenyan people told you what they want. They want to disburse power not to concentrate it. If you have problems with the Bomas formulation for that disbursement of power come back to us and negotiate with us for a new format. We told you we are fed up with the era of the superman who is baba na mama. If you keep imposing the imperial presidency on Kenyans we will throw out your draft at the referendum. There is nothing Kenyans hate more than a one-man rule and if you are not convinced, try us.
The MPs are telling us they will use parliament to impeach the president if they are doing bad things. That is what Oloo Aringo said after the Naivasha feast. That is their check and balance so according to them, we should not worry about increasing the powers of the president including that of appointing and dismissing the bogus PM. Very convincing isn’t?
Just a few questions I want to I put to our MPs. What stopped you from passing a vote of no confidence in our past two leaders who did more than just bad things? You had the power to do so under the present constitution. Why couldn’t you do something? Because you are all impotent before the president whom the MPs worship for favours and for a little power themselves. Look the way everybody including the alleged tough LDP crew are bending backwards to accommodate Kibaki. How can we trust you to protect us from Kibaki when we can see you are desperate to give him his own constitution instead of giving Kenyans what they asked for which you supported before you came to power?
In the history of our country not once have our MPs risen to challenge the president even when presidents were committing mass crimes against Kenyans. Well occasionally they make tough sounding declarations in funerals but have their tails between the legs as soon as they are back in parliament. You have watched political assassinations and murder cutting short the lives of some of our most popular leaders and you did absolutely nothing, in fact some of you have been accused of being accomplishes.
You gave Kanu its one party without even a single dissenting voice. You watched as Goldenberg destroyed our economy and lined up for money from the masterminds. You were part and parcel of the murderous clashes. You turned away and said nothing when human rights activists were rotting in the torture chambers at Nyayo House, in Naivasha and elsewhere. You promised Kenyans a Truth Justice and Reconciliation Commission probably more out of guilt than commitment and now you conspire with our former tormentors to get your “new” constitution. How dare you promise us protection from your king? Do you think we are that dumb?
Why should we trust that our MPs will this time around rise to the occasion when the president messes up and tuff him out. Are we going to import our MPs from another country or is it going to be the same old corrupt and selfish Kenyan MPs?
Let me say one more thing about the MPs proposed distribution of executive authority. You want a presidential system of government and you still want a parliament with a toothless PM who “coordinates” ministerial activities. Imagine this telephone conversation.
Prime Minister: “ Bwana Kamunda nimekuja kwako lakini si kupata, uko wapi”
Minister Kamunda: “ Bwana PM unafanya nini ofisini mwangu”
Prime Minister: “ Minister I am here to coordinate your work, didn’t you hear the president gave me the job to coordinate ministries”
Minister Kamunda: “ Wacha nikuambie Bwana Prime Minister, mimi ni full minister, na hi kazi nimepewa na President mwenyewe, sasa wewe ni nani uta coordinate kazi yangu”
Prime Minister: “Bwana Kamunda, please…….Listen Mr. Kamunda…”
Minister Kamunda: “Mimi nafanya inspection ya mabars na restaurants hapa Thika and I am telling you get out of my office right now and never come back without my permission”
Prime Minister: “Bwana Kamunda ……I can’t believe this. That fool has hanged up on me”
I am not trying to be funny, but I am imagining how our rude and crude cabinet ministers are going to be supervised by some useless PM appointed by the president. If I were the president I would give that job to my worst enemy. Then I would sit back with my trusted buddies at State House and watch as the bloated fool runs a round in cycles chasing the unruly and rowdy ministers. I mean these guys literally insult each other daily. They call each other names like “dogs” or “madmen” and dare each other for wrestling matches and now we want one of them to supervise the others. Please spare us the joke.
The only power the PM needs to control cabinet and give direction to government operations is for the PM to have the authority to nominate or appoint the cabinet. That is why Bomas delegates shared those responsibilities between the PM and the President. It was not a matter of creating a job for Raila so that if he is willing to take a lesser job then all should be fine. We are thinking about the future when there will be no Kibaki and no Raila. Without the authority to appoint or nominate the cabinet we do not need the PM’s office. The Secretary to the Cabinet already coordinates the ministerial functions, so lets stop playing mind games with Kenyans.
I think Kenyans really need to determine if we need a presidential system and put in place all the various checks and balances to ensure that even if the devil himself were to sneak into that office and become our president, our country will still be democratic. Cooking things on the run particularly with respect to executive authority is extremely dangerous. Neither the parliamentary nor the presidential system is inherently good or bad, it is how they are designed that makes the difference and the trickery of the PSC which is supposed to be endorsed by the MPs will give us the worst of both worlds. It is a horror story in the making.
The other one where the PSC formula portends disaster is on devolution. The big guns are dead set against the regions designed by Bomas, which were to be the regional centres of power replacing the archaic provincial power structures. The week before the parliamentarians had indicated they will retain the provincial administration, but perhaps realizing how terribly unpopular the idea was the Naivasha fraudsters decided they will do away with the provincial administration but also do away with the proposed regional centres of power. They decided they will come up with something called counties ranging between thirty and forty. What these otherwise smart people cannot see in their mad rush to give Mzee his thing is that this amounts to creating a terrible power vacuum.
The regional heads according to Bomas Draft were to be elected and would coordinate issues of resource allocation, good governance, economic development and regional budgets as well as issues of security with the central government. When we remove the regions, we cannot just come up with fictitious counties to replace them without risking a completely unworkable power structure or absolute control and dictatorship from State House. These things were well thought and any attempts to redefine them must be equally well thought out and collectively agreed upon. You cannot do this kind of stuff between nyama choma and rounds of tusker and wine in resorts. I mean how can we explain the fact that the PSC thinks it is too expensive to run 7-8 regions but a lot cheaper to run 30-40 counties. What the heck were they smoking in Naivasha for goodness sake?
Once you build a house the way Kenyans worked to produce the Draft, people cannot come and just cut one corner here and another corner there and say there you have your house. The damn thing is going to collapse. Whatever we chop off we must replace with something to sustain the integrity and strength of the structure.
Then there are a few technical things that I don’t think our biggies at Niavasha bothered to figure out.
First the MPs are facing the 65% dilemma in the consensus Bill that Kibaki is sending back to parliament. Ruto and company told us they made a deal with Muruingi and co to demand a 65% MPs approval for the MPs to amend the Bomas Draft and basically create their own. My suspicion is that Kiraitu got assurances from Raila and co that they will whip their LDP followers to support the amendments and therefore there should be no worry about getting 65% approval. The plan with the 65% requirement is to con the public into accepting the deal under the lie that it would be very hard to change the draft. How can it be hard when all the MPs are singing from the same songbook?
The trouble here is we know the NAK team want a 50% approval because they do not trust the LDP types. NAK has invented tons of excuses and legalistic propaganda to support their claim that the 65% requirement is illegal. Now what happens when the amendment bill goes to parliament and Muruingi and co trick the Raila squad and get their desired 50% requirement instead of the promised 65% approval. Does Raila storm out of parliament screaming betrayal? And then what happens to the Raila/Muruingi constitutional alliance? Could this be the beginning of another round of a constitutional MoU scorned?
Secondly the Koigis, Njokis and Kibwanas have made it clear it is illegal to place the 65% requirement on any bill except for a constitutional amendment bill. By the way this argument is total rubbish simply because changing the Bomas Draft is the equivalent of amending the constitution of Kenya since the Bomas Draft is meant to replace our existing constitution. The argument that the Bomas Draft is not yet a constitution and does not need 65% approval is completely irrelevant. Parliament is engaging in actually writing a constitutional draft (illegal under our laws) whenever they touch the Bomas Draft. How do you write a constitutional draft and say you are not changing the constitution. Obviously this is not a bill about how to import sabuni into the country. But my point is how do the Koigis and others reconcile with the PSC deal. Isn’t this bill being brought back to parliament precisely because of this alleged illegality? How does parliament legalize the illegal? That is what I would like to know.
Third, what happens if enough MPs gather the courage and patriotism to reject the irritating demand for all executive authorities to be confined in the hands of the president? Is Muruingi going to jump out of his chair and lead another walkout from parliament or does he swallow his pride and say wajumbe have spoken? Do we then start a new round of consensus?
Isn’t it very presumptuous for the PSC and a few power brokers to pre-determine what the MPs have to accept and what they cannot touch? Why for example do we still need to take the matter to parliament if there is a pre-ordained deal they simply have to rubber stamp the same way they did the constitutional amendment in 1982 to make Kenyan a one party state by law. What happens if other MPs identify other areas of the constitution they want to be changed, say the Kadhi’s court? Is there going to be another bill restricting MPs to discuss only the parts of the constitution identified as contentious by the PSC? If there is no such law what is to prevent the MPs from venturing into each and every area of the draft? Basic decency? Please don’t kill us with laughter.
Finally what happens if after all the hard work, the endless and expensive retreats we are able to get the courts to basically endorse Ringera’s ruling which told us it is only the sovereign people of Kenya who can draft and change their constitution.
There is no doubt that as soon as parliament starts mutilating the Bomas Draft, lawsuits will be filed to test the legality of the exercise. And if our courts are to be consistent and credible there is a very likely chance Ringera’s ruling will be validated and parliament will be holding an illegal draft. Then what?
I suggest we do the following. Lets move the constitutional battle to 2007. Let Kenyans decide what changes they want to make to the Bomas Draft, let us come up with a collective and representative body to deal with this even if it is a Bomas IV which accommodates some of the concerns of those who had problems with it. Whatever we do let us discuss the draft in a fixed time frame agree on changes and lets take it to the referendum in 2007.
The practical thing to do is to have both the General Elections and the referendum at the same time. We should get away from the fiction that a certain government will give us a new constitution. History has proved every government will design a constitution for its own good. Kenyatta designed his own constitution, Moi designed his own constitution and none of them was good for the country. Now we are witnessing the horror a government we elected on the promise of ushering a new constitution engage in exactly the same practice where leaders want a constitution that suits their individual political interests.
My proposal is to have Kenyans choose their constitution and choose their leaders at the same time so that our leaders will not have to give us a constitution but govern by the constitution we have chosen. In the meantime Kibaki and Narc has just about two years to try to do at least a few of the things they promised us like the 500,000 jobs per year, reviving the economy, fighting corruption, giving us back our stolen land. I don’t want to insult torture survivors and other victims of state repression by even suggesting the possibility of a Truth, Justice and Reconciliation Commission. That too is going for 2007.
The writer is a human rights activist.
Thursday, November 11, 2004
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