Thursday, March 17, 2005

The Kenya We Don’t Want

By Adongo Ogony

I find it insidious and quite frankly annoying that while

Kibaki was busy promising Kenyans a new constitution

his goons known as Kenyan police were busy

battering and arresting peaceful demonstrators whose only crime was to demand the same constitution Kibaki was talking about.

This state organized hooliganism was carried by dozens of news media outlets around the world.

First of all, Kenyans are tired of Kibaki’s promises on the new constitution. We have had numerous promises before since Kibaki came to power and nothing has come of them.

What is new now?

Absolutely nothing.

The reason we do not have a new constitution as everybody knows is because Kibaki and his buddies in the DP who so eloquently asked the CKRC in the year 2000 to reduce what Kiraitu called the "imperial powers of the presidency" and establish an office of the PM to be head of the government, made a full 360 degree turn once they tasted power and today refer to an executive PM as a joke.

"It is, I should emphasise, we are retaining the Presidency as the focus of the sovereignty of this nation and the focus for the structure of government. We have reduced powers allocated to the President–everyone is agreed that the concentration of too much in the hands of the Presidency is what has created a lot of problems with which we are faced now in this nation. We have sought to redistribute those powers. One change which we have proposed, is that the Vice-Presidency will now also become an elective office so that during the elections, a presidential candidate would nominate his running mate who would the vice-president and they would run together so that the public have a chance to vote for a team, and that would give that particular office some status. We have proposed that the President and Vice-President should not be members of parliament but in order to make sure the government is seen in Parliament and is questioned day to day on major and urgent issues which come to Parliament, we have proposed the creation of the office of the Prime Minister who would the person whose party alone or together with other parties in a coalition to command a majority in Parliament. The Prime Minister would be the one to run the government on a day to day basis and he would sit in Parliament and would have to be elected. He would also be available for questioning on anything that the government is doing is failing to do. In this way we are giving more status to Parliament as distinct from the way it is now where the Head of Government is not available in Parliament for questioning. I think this will strengthen the democratic practices and above all if things go wrong, Parliament would have a chance to correct them before they go too far."-

DP Chairman Mwai Kibaki at Ufungamano, 2nd of November, 2000

In fact Kiraitu told the CKRC that the presidency in Kenya had more powers than the governor during the nasty colonial era.


Kiraitu wants all those powers and more and he has the full support of the president. That is why we do not have a new constitution. How does Governor Murungi sound to you my fellow Kenyans?

The gimmick of so called contentious issues is a creation of Kibaki and his people who bolted from the NCC plenary session like cowards instead of taking their issues to the floor of the plenary so that the NCC itself could identify the contentious issues as is stipulated in the CKRC Act 2001. Since then Kibaki has taken the nation through hoops and all sorts of tricks including the dubious government of tribal disunity which he now runs.

So when Kibaki says he is committed to making sure that Kenyans have their new constitution the question we should ask him is this: Which constitution do you want Mr. President? Is it the democratic and progressive one you proposed to the CKRC in March of 2000 or is it the one you have fought for almost recklessly since you came to power, which gives you all the executive powers? The answer to that question is the key to unlocking the constitutional stalemate; forget the propaganda about partisan interests.

Mr. President, if your answer to the question above is the former, then we already have a new constitution in the name of the Bomas Draft. If your answer is the latter then this could be the worst timing for you. The corruption saga has revealed to Kenyans that the extremely powerful presidency is the origin and the biggest stumbling block in dealing with corruption. As long as the president is still baba na mama we can forget about the war on corruption. From what Kenyans have seen in forty years all a person needs is to be a friend of the president and they can rob Kenyans as mush as they want. Ask Minister Ndwiga and his goat-eating story. By the way did you say those words Mr. President? I mean the goat eating business.

Let me go back for one second on the clobbering of the demonstrators. We need to know this: How can the government tell us they are committed to fighting the

violence in Mandera and Mai Mahiu when Gen. Ali and his boss Michuki see nothing wrong with unleashing police thuggery against non-violent demonstrators? When is the government of Mheshimiwa Kibaki going to stop this barbaric behaviour of police beating people simply for speaking their minds or demanding their rights? Just a week ago policemen shot and killed Maasai men who posed no danger whatsoever to the cops.

To my friend

Maina Kiai and the Kenya National Commission on Human Rights:

We need answers and action from you.

This is getting out of control. If the Kibaki’s people think they can intimidate Kenyans and stem the tide of mass action, they should have a long chat with Moi and his security agents (whom Kibaki retained). It will never work. Kibaki can reopen Nyayo House Torture chambers, but that will never stop Kenyan patriots from telling Kibaki and his government that we are tired of words. We need action on the constitution. Enough already.

Now to the Keter Bill. I support it and I am actually happy the MPs amended the no-confidence part to require a 65% support to sail through. I was a little nervous that just with a 51% vote the MPs whose records are hardly better than that of Kibaki would send any president parking. The people of Kenyan elect their president and when they screw up like Kibaki is doing they will hear from us. In fact I don’t trust the MP’s even to be the ones to elect a PM as proposed in the Bomas Draft. I have often argued that I would prefer the PM to be elected as a running mate of the president. This eliminates the two centres of power excuse being peddled by the likes of Kiraitu but more importantly it will allow Kenyans to directly elect both their head of state and head of government at the same time. On the Keter Bill, I feel sorry for the DP dinosaurs who completely oppose the bill ati to protect Kibaki. The DP is going to be lonely on this one. Wake up guys and smell the coffee.

One more thing before I forget.

Mr. President:

When are you going to denounce tribalism and tell your GEMA friends that you are not a Kikuyu president but rather a Kenyan president? Or may be I am wrong. I was just wondering.

The important thing about the Keter Bill is that our MPs should not take their eyes off the ball. The real issue is to resolve the Bomas Draft and get to the referendum. We know that Kibaki folks smuggled that fraudulent amendment to get 51%, which could allow as small as 30 wakoras in parliament to write a new constitution for us. The good news here is that when Kiraitu betrayed his friends after the Naivasha Accord he completely lost their trust. Well they say there is no trust among thieves. It is hard to trust Kiraitu so I don’t blame them. The bottom line is that the Naivasha Accord is dead, but believe it or not Kibaki is going to do everything he can to revive it. My point is that the Keter Bill would be completely irrelevant if we had the new constitution, but since we may never have that new constitution during the Kibaki misrule we need the bill to take away the powers of the president to manipulate parliament to serve his personal agenda.

Let me also say something about all this drama about the Ouko Inquiry. I am appalled that there is a stiff campaign to discredit the Sunguh Committee and to scuttle their report. First let me say I have a lot of concerns about the behaviour of Mr. Sunguh and some committee members. I am particularly dismayed with reports that Sunguh invited some of the witnesses to his house and tried to influence their evidence. If true that is a completely disgraceful act and Sunguh should be reprimanded by parliament. However I find it silly that people want Sunguh to be a qualified investigator, a prosecutor and a judge all at the same time. This is nonsense.

It is not the business of Sunguh or his committee to find anybody guilty or innocent. That can only be done in a court of law. The job of this committee is to tell Kenyans who the suspects are, based on evidence gathered. Once the Committee fingers the suspects, remember the key word here is suspect, then it is the job of Gen. Ali and Wako to carry out a thorough and professional investigation to determine if there is enough evidence to convict any one in a court of law. I found the argument by Macharia Gaitho of the Daily Nation that Gen. Ali will need concrete evidence to arrest anybody a little out of place. I thought it was the job of the police to gather evidence. Since when did we change our laws so that wananchi and committees are supposed to provide evidence before suspects are investigated and arrested? Is this not the same ridiculous argument by our AG and even the president asking people to provide evidence before action is taken? What exactly do we pay the police to do?

Like my friend Onyango Oloo said, when powerful people commit crimes including murder and grand theft we form commissions of inquiry but when ordinary Kenyans commit crimes even something as minor as eating someone’s chicken (without permission of course) they are headed to jail. I think there is already enough evidence in the Troon report and the aborted Justice Gacheru report for the police to be conducting investigations with the help of any other agency (Scotland Yard, FBI etc) to take the culprits to court. Instead we are wringing our hands about Sunguh nailing the culprits. The reason we have these commissions is because of the corruption and incompetence of our police force and the A.G’s office. The police in Kenya and the A.G are only allowed to investigate certain crimes but not others and they are happy with that. What a shame.

For those crying tears of blood because one of the apparent suspects Mr. Biwott was not given adequate chance to defend himself let me assure them that if indeed Biwott is charged in a court of law he will have all the chances and time he needs to defend himself. Lets us understand that the PSC is not a court of law. By the way I was wondering I hope those who killed Ouko gave him at a little due process and a chance to defend himself before they pulled the trigger and lit the fire. I hope they allowed Wuod Seda to at least say his last prayers. Even the executioners in the death row allow the convicted to say a few words before being fried.

The real deal about the Ouko saga is that nobody in government is interested in who killed Ouko anymore. Politics has intervened in our transition justice program and all sides in parliament need the support of suspects in the Ouko murder. Everybody is safely home. How nice? Now Impunity can stand on the rooftop and tell Kenyans loudly: “I am here to stay folks, get used to it” We will see.

Now what can we do. Number one as usual I am truly proud of the brave souls of the Yellow movement for daring the goons of Gen, Ali and letting the nation know that the battle for a new democratic constitution is going up a notch.

Secondly I am hoping that as soon as Kiraitu publishes that fraud called the Constitutional Amendment Act 2004, Kenyans will take it to the constitutional court. I think we should focus on two areas. One is to challenge the 51% vote requirement as unconstitutional. I mean if parliament cannot amend the constitution without 65% of all members how can they actually write a new constitution with only 30 MPs out of 222.

Forget the nonsense that parliament will only meddle with 20% of the Bomas draft. Such promises have no basis in law. Parliament is giving itself the right to draft a new constitution for us. What this means is that if Kenyans reject the Kiraitu/Kibaki draft we may never get a constitution. This makes a mockery of the constitutional provision that the sovereign people of Kenya have a right to change their constitution. Kiraitu’s bill is basically saying that the sovereign people of Kenya can change their constitution only if they agree with what parliament has drafted. So who is sovereign? Parliament or the people of Kenya. According to Kiraitu bill Kenyans become subordinate to parliament in the constitutional making process. This is a complete fallacy and a mockery of the law. I am confident that even in our messed up courts the chances for victory is huge.

Secondly we should subject the amendment to the Njoya test. Based on the ruling in the Njoyas case by Justice Ringera and co it would appear to me that parliament has no right at all to amend the Bomas Draft regardless of the percentage. Lets take this thing to court and open that frontier of battle.

Of course we all know that the real battlefield for a new constitution lies in what our friends of the Yellow Movement did on the day Kibaki opened parliament. Mass action and only mass action will give Kenyans a new constitution. The problem is to organize it nationwide. This is the challenge I am sure all Kenyans are prepared to face. Wembe ni ule ule.

Finally let me ask my good friend Mwandawiro Mghanga the parliamentarian representing

the Wundanyi Constituency

a small favour.

Comrade Mghanga:

Could you please stand up in the floor of the house and ask Mr. John Michuki our new minister responsible for internal security why the police are still beating and killing Kenyans who have committed no crime at all. Why are demonstrators like the ones in Ukunda Kwale and those outside parliament being harassed, tear gassed and arrested by police? What happened to our rights of assembly and freedom of speech? Why should our police use so much resources and personnel to apprehend peaceful demonstrators instead of dealing with criminals (robbers, carjackers, muggers etc) who are terrorizing every corner of the nation? What are the priorities of our police force and the OP other than the navy tanks? I think it is a tragedy that in 2005 the Narc government is sending people to beat up on those demanding the same constitution they promised two years ago and counting. Please Ndugu Mghanga get us some answers to those questions. The nation needs to know what is going on with the tax money our people give to the OP. Is it to facilitate our oppression or is it for our security? This is urgent Ndugu Mghanga. Get some help from your fellow MPs to get answers to these pressing questions. How about talking to some of those so-called reform minded MPs? Are they still in parliament or more importantly are they still reform minded enough to say no to police brutality? That is the question. Now lets here the answers. Shall we. Better be soon.

The writer is a human rights activist.

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