A Supreme Slap on the Kenyan People

 A Digital Essay by Onyango Oloo

The Supreme Court has decided.

It took them less than ten minutes, or so it seemed.

Uhuru Kenyatta and William Ruto have been validly elected as President and Deputy President of Kenya. The Jubilee Coalition can go ahead and form the next government and rule Kenya for the next five years.

In my opinion, it is a defeat for Kenya.

It is a defeat for all Kenyans, especially those millions who lined up for hours upon hours,  waiting for their chance to cast a vote for president,  governor,senator, national assembly member, women’s representative and ward representative.

It is a defeat for the rule of law.

It is a defeat for the truth.  

                                                                       

It is a defeat for justice.

It is a  Pyrrhic victory  for Uhuru Kenyatta, who now has the challenge of ruling a divided Kenya, lacking national and moral legitimacy.

Those of us who are patriots and democrats still stand in solidarity with  Raila Odinga, Gladwell Otieno, Zahid Rajan and their lawyers who have been vindicated in their claims that the IEBC bungled the elections.

It is regrettable that such a historic ruling touching so closely on our hard fought democratic gains had to be delivered in such a taut ambience with the Supreme Court judges, litigants and their lawyers, literally under occupation from a phalanx of robocops on horse back, totting assault rifles and walkie talkies taking us back to the televised images of Kibaki’s infamous 2007 civilian putsch when terrified journalists, observers and political party agents were forced out of the Kenyatta International Conference Centre at the tip of menacing bayonets, amidst a repressive clampdown and crackdown on the media at the diktat of the former internal security minister now retired and in eternal repose, somewhere in heaven, if not hell.

Here are  some of the tweets  Kenyans were sharing as they awaited the decision:

Dr Willy M Mutunga ‏@WMutunga 11 Mar[/b]

@pkeruya. You forget that that power given to 6 of us is derived from 40 million Kenyans, not just those who voted!

Kenya Govt Spokesman Kenya Govt Spokesman ‏@SpokesmanKE 17m

Security around Supreme Court building tight: http://goo.gl/fb/svwn0

Vincent Chepkwony ‏@vincechepkwony 58s

GSU heavily present along Mbagathi way! Do they know what we don't?

aMACus OTANIae ‏@MacOtani 10m

Ati the Supreme Court has been sealed off with a "CRIME SCENE DO NOT CROSS" tape.....crime gani tena jamaneni? #SwalaNyeti

Dennis Onsarigo Dennis Onsarigo ‏@Donsarigo 1m

I insist we love this country so much we can't destroy it. Kindly stop preaching peace and preach patriotism!!!!!!

Isaac Ongiri ‏@Ongiri2 3m

PM Raila Odinga to follow Supreme Court ruling from his office at Harambee Avenue at 3.30 pm.

Michael Mumo ‏@m_mumo 8m

Tight security around Supreme Court building

DAVID OHITO ‏@ohitoaol 4m

I went to buy petr[i]ol in a bottle to clean my equipment at home but was turned away Reason: I could turn into a bomb!

Some Six People ‏@KohadhaRoy 7m

The amount of security within and around #SupremeCourt will make one think that a Coup is about to take place!

Rob N Jillo ‏@robjillo 14m

CITY Hall Way, section of Wabera Street barricaded by GSU personnel as the country awaits ruling on Raila’s petition by the Supreme Court

Wanjikũ™ Revolution ‏@WanjikuRevolt 5m

RT "@agutamonda A government scared of its own people to the extent of mobilizing heavily armed security for itself is illegitimate."

EssentialAfrica ‏@essentialafrica 22m

RT @kelvinnews: Road outside #Kenya's Supreme Court closed off with tape that says 'Crime Scene Do Not Cross'..... pic.twitter.com/yupu6W3FBK

SENATOR MURKOMEN ‏@kipmurkomen 15m

The security around Supreme Court is too tight.

 Martin Muroki ‏@OleMartinezM 16

@kipmurkomen This thing should just come and we move on

Philip Warutere Philip Warutere ‏@pstwarutere 13m

@kipmurkomen tight security is meant to stop @UKenyatta and @RailaOdinga from a physical brawl outside SCORK otherwise Kenyans are peaceful.

Rodgers Esekon Rodgers Esekon ‏@ngunyi_wannabe 10m

Some powerful men can buy,threaten #theSixPeople for justice @kipmurkomen

philemon kandie philemon kandie ‏@philemonkandie 6m

kipmurkomen yeah,hooliganism has no place.

isaac tuei ‏@iktuei 21m

Bensouda rejects Uhuru, Ruto video link appearances http://ow.ly/1UhrTl  #KenyaDecides #ICC

Tribe 42 Tribe 42 ‏@CrazyKenyan_ 4m

    >> RT @makodingo #nw Nikita. Alert me when the GSU go back to whatever it is they do when they're not intimidating Kenyans

joe wamiti ‏@joewamiti123 6m

@WanjikuRevolt @WMutunga

 i trust you have the will of the people of kenya in heart.

frederick okango ‏@fokango 6m

You are all reminded that In a democracy, dissent is an act of faith. #PresidentialPetition

Mutisya Leonard ‏@mutisyal 17 Mar

The KE media's self retraint reveals a Society terrified by its own capacity for violence. -Michela Wrong #KeElections13 #MediaCredibility

Binyavanga Wainaina ‏@BinyavangaW 51s

whatever happens this afternoon, we move forward painfully into a pimply and promising adolescence. Lets manage these hormones well.

For the moment, the supporters of CORD can cite the many feathers in their caps:  the Supreme Court in the scrutiny establishing the many anomalies, illegalities and blatant flaws, which to use a word popularized in Kenyan circles  by the erudite Ms. Kethi, irregularities which “vitiated” any results alleging that Uhuru Kenyatta “won” the March 4 Presidential elections in Kenya.

 To quote from the blog Petition Leaks:

 1. Court ordered re-tallying of 22 polling stations [they are part of the disputed stations] . This is CORD’s Win No. 1

2. Court ordered scrutiny of all Forms 34 and 36. This is CORD’s Win no. 2

3. Oraro, Kilonzo & their teams provided overwhelming, incontrovertible and convincing evidence and arguments showing fraud and the fact that Uhuru never met ther threshhold of 50%+1.  This is CORD’s win no. 3

4. IEBC lawyers basically confirmed veracity of Oraro’s and Kilonzo’s arguments (multiple registers, secret register, alterations to register after Feb 18, verification in absence of party agents, undisclosed contract with Kencall server and conflict of interest, etc). Yet those things are illegal. This is CORD’s win no. 4

 5. Ahmednasir (for Isaack Hassan) attacked Raila, demeaned colleagues, lectured Judges and stressed that they exercise Judicial restraint. Confirmed election theft but said: “in every election votes are stolen” . An indicator, they sense or may believe Judges have been persuaded by Oraro-Kilonzo arguments. This is CORD’s win no. 5

 6. AG Githu Muigai’s spirited canvassing for the IEBC when its lawyers failed. AG specifically urged the Judges to go beyond the requirement for ‘proof beyond reasonable doubt’, dissuading them from nulifying election was a pointer he too believes Oraro-Kilonzo team have persuaded the Judges. This is CORD’s win no. 6.

 7. Argument and body language of maestro lawyer Ngatia. ‘Introducing’ AG’s desire to speak first because he is busy to which Judge quipped :”I thought the AG  was a friend of the Court…?”. His video but no punch. They did not persuade the Judges in the Court. My reading is there is panic. This is CORD’s win no. 7.

 Furthermore, Judges reprimanded lawyers who were bashing the petitioner was also interesting. The remark: ‘You are speaking like your clients’. Interesting.

Matters raised in the Raila Odinga and AFRICOG  petitions aside,  let us recollect the words of Chinua Achebe, the great African sage who rejoined our ancestors a few days ago:

Needless to say, we do have our own sins and blasphemies recorded against our name. If were God, I would regard as the very worst of our existence| for whatever reason/of racial inferiority. It is too late in the day to get worked up about it and blame others,much as they may deserve such blame and condemnation. What we need to do look back and and try to fin out where we went wrong, where the rain began to beat us.

If, as Kenyans, we start retracing where the political rains began to beat us as far as the contested March 2013 elections are concerned, we must look beyond Issaack Hassan, beyond Oswago, beyond Form 34 and beyond Form 36. We must  look beyond Ken Call, beyond BVR and beyond BVI.

Although one could go back to 1963 or 1978; although we could zoom back to the Bomas Conference, I want to fast forward to 2009.

The Committee of Experts put out a call then entitled Invitation for Proposals on Contentious Issues.

Under bullet 1.4 of that document, they posed the  following question as regards the  Executive:

(i)            What should be the relationship between Parliament  and the Executive be/ should there be a Presidential system with a President and Cabinet who are not members of parliament. In a Presidential system the President is directly elected by the people and is Head of State and Head of Government, with a Vice President as running mate.

(ii) Should  there be a Parliamentary System with the Prime Minister as head of the Executive (Government) chosen from Parliament? In a parliamentary system, the power to govern derives from parliament and the Prime Minister is appointed from a political party or coalition of parties that has the majority of seats in Parliament. The Prime Minister usually appoints the Cabinet from  within Parliament. There may be a ceremonial President as representative Head of State.

(iii) Should there be a “mixed” or “hybrid” system with a President and Prime Minister sharing  power? How should this power be shared? Such “mixed” or “hybrid” systems vary on the extent to which executive power is shared between the President and the Prime Minister.

(iv) Whatever system is chosen what are the best ways of ensuring that:

All Kenyan people and communities are properly represented and served?

The Executive is properly accountable?

Heeding to the above invitation by the Committee of Experts, here is an extensive excerpt from the memo that ODM submitted:

    SUMMARY

    The Orange Democratic Movement (ODM) reaffirms these commitments and states in this Memorandum as follows:

    1. The Executive

    a) Based on Kenya's political system which is a multiparty system

    b) ODM endorses a parliamentary system

    C) Separate function of State and Government

    d) Ensure Parliamentary system allows Kenyans to elect their leaders. Issue of sovereignty must not be left out.

    e) Issues of Parliamentary system will be refined at a later date.

    2. Devolution

    a) Three levels of government: National, Regional and District

    b) Regions will be 14 in number as in the Bomas Draft. All districts should be made into Constituencies. These will be called Counties for purposes of service delivery. Locations will be building blocks of Counties as units of service delivery

    C) All Constituencies created by the Boundaries Commission will become districts

    d) Every officer posted to the district must report to the elected leader at the District or County level.

    3. Senate

    a) Will be a chamber for regional representation. Number to 42

    b) Each Region will send an equal number of representatives to the Senate

    C) Number of representatives will be three one of which must be from each gender

    d) Senators should be delegates who carry the decisions of regions taken at the local level and cannot be compromised

    e) Elections to the regional assemblies to be by universal suffrage.

ORANGE DEMOCRATIC MOVEMENT MEMORANDUM TO THE COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW

PREAMBLE

The Orange Democratic Movement (ODM) was born out of the struggle for a new constitutional dispensation for Kenya. From its very inception, the creation of a new, transparent and accountable institutional arrangement for Kenya has been at the heart of ODM's vision for this nation. Now that the country has once again embarked on the process of trying to complete constitution-making, ODM wishes to make proposals on what it considers a good Constitution for the country. These proposals focus more on the areas that were considered contentious and others that may require reconsideration given the changes that have taken place since the last referendum on the constitution. In making its proposals and recommendations, ODM would like to remain faithful to the Bomas Draft constitution since this Draft emanated from the people of Kenya and was arrived at after very intense and well considered negotiations among the people of Kenya.

ACKNOWLEDGING the Supremacy of the Almighty God of all creation and the Constitution of the Republic of Kenya:

RECALLING that the Orange Democratic Movement has been the pioneer Party in the reform agenda:

AND IS COMMITTED to the dispensation of a new Constitution:

RECOGNIZING that the people of Kenya want a people driven Constitution and that their aspirations are for a Government based on freedom, democracy, social justice and the rule of law:

PROUD of our ethnic, cultural and religious diversity and determined to live in peace and unity as one indivisible sovereign nation:

EXERCISING our sovereign and inalienable right to determine the form or governance of our Country:

The Orange Democratic Movement (ODM) reaffirms these commitments and states in this Memorandum as follows:

The Executive

ODM proposes a pure parliamentary system based on the Bomas Draft constitution. There are two types of parliamentary systems. One fuses the offices of head of state and head of government in to one office held by one person. The South African system in which the President is the leader of the majority party in the National Assembly and is elected to that office by the members of the National Assembly is the best example of this kind of parliamentary system. The second type maintains a certain measure of duality at the top; with the offices of head of state and head of government being separated and held by two different persons. In this case the office of head of state is normally ceremonial as the executive power and authority of running government is normally vested in and exercised by the head of government. The head of government normally executes the affairs and functions of government in the name of the people. As such, it is the head of state who, formally signs and ascents to bills and ceremonially effects decisions of the head of government and his or her Council of Ministers. The foundation of the later type of parliamentary system is the West Minister model under which the Monarch serves as a ceremonial head of state while the Prime Minister serves as the head of government. In this system, once a political party wins majority seats in parliament, the Monarch invites the leader of that party to form a government. The countries that have successfully borrowed from this system are Canada, India and Germany. In Canada, for instance, a ceremonial Governor-General is the representative of the Queen in her capacity as head of state while a Prime Minister serves as head of Government. In Germany, on the other hand, a ceremonial President serves as head of state and a Chancellor serves as head of Government.

One of the major distinguishing factors of the West minister type of parliamentary system is that the ceremonial head of state is normally not elected through universal adult suffrage. The head of state can be a hereditary Monarch as in the case of the United Kingdom; or a ceremonial President elected by the legislature, as in the case of India, Germany and Israel.

The Bomas Draft Constitution proposed a dual executive leaning more to the parliamentary system rather than the presidential system. Article 172 of the Bomas Draft creates an executive Prime Minister who is described as the head of government. The other articles, however, require the Prime Minister to share Government functions with a president who is elected by universal adult suffrage. So as to remain faithful to the Bomas Draft, ODM recommends a pure parliamentary system with a dual arrangement at the top separating the head of state from the head of government a long the lines of the German and Indian examples. There should be a President who is a head of State and a Prime Minister who is a head of government.

Functions

In a parliamentary system founded on duality at the top, the division of functions between the head of state and the head of government is based on the concept of state functions and government functions. Whereas the head of state performs state functions, the head of government performs government functions. Furthermore, the head of state performs his state functions upon the advice of the government through the head of government. In this connection state functions may be identified as the state opening of parliament; representing the country in its international relations by accrediting and receiving envoys and ambassadors; and signing treaties. The exercise of the prerogative of mercy is also listed as a state function to be performed by the head of state on the recommendation of an independent pardons and clemency board. Ideally, the actual nomination of the envoys and ambassadors is done by the head of government while the head of state does the formal signing of the instruments of appointment as a matter of course. Similarly, the negotiation of treaties is done by the government with the approval of the legislature while the head of state simply does the formal signing.

On the other hand, government functions are identified as the formulation and determination of general government policy and guidelines; the implementation of government policy; and the actual running of government affairs.

One area that normally causes a bit of confusion is the command of the armed forces. Ideally, the external defence of the country, which is the main function of the armed forces, is a function of the government, and not of the state. As such, the command of the armed forces should be a function of the government. Indeed, in Germany, article 65a vests the command of the armed forces in the government through the Minister of Defence. In other parliamentary systems, the command of the forces may be vested in the head of state acting on the advice of the government subject to parliamentary approval.

ODM recommends a parliamentary system based upon the Bomas Draft Constitution. The President should be the head of state while the Prime Minister should be the head of government. But to be able to give effect to the principles discussed above, ODM recommends certain changes to chapter twelve of the draft. For instance, article 151 should be redrafted to vest the executive authority of the Republic in the Prime Minister and his Council of Ministers. Article 152 should be redrafted to provide for a President who is a head of state and who performs the function of commanding the armed or defence forces but on the advice of the government through the National Security Council. Like in the German system, the President may not be a member of the government nor the legislature both at the national and devolved levels of government. The president should play the formal role of representing the country in its international relations. He should be the one who formally signs treaties concluded by the government with other states. He should also be the one who formally accredits and receives envoys and ambassadors. He should have the power to exercise the prerogative of mercy upon the recommendations of an independent pardons and clemency board. Similarly, as in the case of Germany, a new clause should be introduced requiring that to have validity, all orders, directives and appointments made by the President be countersigned by the Prime Minister.

Recruitment/Elections

In parliamentary, systems the head of government, is normally the leader of a political party that wins majority seats in parliament. He/She is elected by universal adult suffrage through the election of his political party as the majority party in parliament. Once his party wins the majority, he becomes entitled to form the government. In some systems such as the British one, he is normally asked by the monarch as head of state to forma government. In others, he is normally elected by the legislature before being asked to form a government. In Germany, for instance, the Chancellor is elected by the Bundestag; whereupon the President formally appoints him to the office of Chancellor and invites him or her to form a government. In South Africa, the President who is both head of state and government, is elected by the National Assembly. In almost all the cases, the leader of the majority party easily ends up winning the votes of the members of the legislature to become the head of government.

On the other hand, the general rule is that the head of state is normally not elected by universal adult suffrage. In systems such as the British one, he or she is a hereditary Monarch. In Canada, he or she is appointed to office by the government but acts as the representative of the Monarch. In Germany and India however, he is elected to office by some kind of electoral college. In Germany, by the President is elected by a Federal Convention by consesus. The Federal Convention comprises of the members of the Bundestag and an equal number of members elected by the regional (Land) parliaments on the basis of proportional representation. In India on the other hand, the President is elected by an electoral college consisting of the elected members of both houses of the Parliament and the elected members of the State Legislative Assemblies. The election is held in accordance with the system of proportional representation by means of "Single Transferable Vote" method. Each elector casts a different number of votes. The general principle is that the total number of votes cast by Members of Parliament equals the total number of votes cast by State Legislators. The most important thing to note about the two countries is that efforts are made to create a balance between the role played in the election of the Head of State, by the national level of government through Parliament and that played by the governments or parliaments of the devolved levels of government. Equal participation by the two levels of government is emphasized.

Taking these examples into account, ODM proposes that the president be elected by an electoral college that has equal representation from the national and regional levels of government. The Electoral College should comprise the members of the national Assembly, the members of the Senate and a number of electors elected by the regional assemblies. The total number of the Senators and the regional electors shall be equal to the number of the members of the national assembly. The regional electors must be distributed to all regions on an equal basis bearing in mind gender and disabilities. The intention is to have a president who can represent the national interest.

Eventually, ODM retreated from this “Parliamentary System” position during the Naivasha horse trading between PNU and the ODM (riven with internal conflicts between its feuding Ruto and Raila factions) which ended up watering down the Harmonized Draft Constitution, transforming it to the  so called “Revised” Harmonized Draft which was what was put to Kenyans during the August 2010 Referendum.

Dr. Job Obonyo, a respected Washington based Kenyan physician, political activist and public intellectual, one of the most incisive and prolific of Kenyan bloggers received   correspondence from one of his trusted Kenyan contacts which he decided to share with his readers on the Jukwaa discussion platform on February 16, 2010:

HOW RUTO CHEATED RIFT VALLEY AT NAIVASHA

Post by job on Feb 16, 2010, 10:26pm

For full disclosure, I received this document by e-mail and only edited portions of it to fit standards of this board.

WILL THE NAIVASHA CONSTITUTION DEAL SHORT-CHANGE RIFT VALLEY?

A closer look at the draft constitution crafted by the Parliamentary Select Committee (PSC) in Naivasha reveals a document that will forever impact Rift Valley Province in profound ways.

This was a document whose major tenets were spearheaded by a newfound friendship of strange bedfellows, one an angry and vengeful Agriculture Minister, William Ruto, and another, a calculating and ambitious Finance Minister, Uhuru Kenyatta, producing a 'compromise blueprint' that needs to be examined.

In the resulting deal, one side totally compromised on principles and aspirations held by their constituents, while elites from the other side got all they have long desired since the pre-independence period without breaking a sweat.

It is quite probable that most Rift Valley residents, disillusioned by recent events in government, have lost focus on examining the proposed draft constitution.

It's also possible that Ruto has capitalized on the rifts created by the handling of Mau, PEV and efforts against corruption, to claim role of sole defender of Rift Valley interests, as a political bargaining chip which he appears to be using for his own personal interest rather than his community's.

DEVOLUTION

ODM walked into this devolution debate quite divided and without joint purpose and the result is that the earlier proposed 2nd-tier of regional government will be no more. Rift Valley Province (as an administrative unit) or region (as a devolution unit) and it's sense of unity will be no more as soon as the draft passes.

The era of small and weak counties has arrived as there shall be no more Rift Valley region or province - as will be the case with all previously existing provinces, or regions proposed in either the Bomas draft or CoE draft.

With just a stroke, the Naivasha deal sliced and diced (in divide-and-rule fashion), the cosmopolitan province into many small, distinct and weak counties only reporting to the strong national government.

Nobody can question the long-held desire of Rift Valley residents to have a majimbo (quasi-federal) system which guarantees self-governance at local level with oversight of local resources including land and which is capable of providing checks and balances to the exercise of power at the national level.

Rift Valley’s forefathers in KADU including Jean Marie Seroney, Taita Toweet, and Daniel Moi, ensured this demand was entrenched in the Lancaster Constitution talks in London before independence.

However, after independence, President Jomo Kenyatta refused to allocate funds to the regional governments, and abolished them altogether in 1964, with disastrous consequences in the Rift Valley.

How did Kenyatta navigate and tame possible backlash from that unilateral assault on the constitution?

Kenyatta's handlers were calculating enough to lure Moi into a political pact. As Kenyatta dismantled the constitutionally created Jimbos, an interesting but significant political development - the formation of a new political alliance - was happening in the background.

Moi secretly negotiated a background deal with Kenyatta and essentially plotted an internal coup in KADU with express plans to form an alliance with KANU.

Moi's compromise card was facilitating the smooth dropping of the majimbo system, strongly favoured by his Rift Valley constituents, especially the Kipsigis and Nandi. In exchange, Moi was promised personal promotion up the political ladder.

Essentially it was an exchange of community aspirations for one individual's personal gain. A similar deal may be cooking today.

From the pact, Moi led a walkout from KADU into Kenyatta’s KANU, which signaled the end of the pro-majimbo party. The majimbo debate was slowly defeated and halted from then on.

That was the beginning of Rift Valley resources (especially land) being plundered at will from the center with people’s voices at the grassroots totally drowned out. Jean Marie Seroney’s fears were being confirmed.

It is this background that motivated Rift Valley residents to begin another protracted campaign to restore the principle of devolution back into the constitution.

In 2005, Rift Valley residents rejected the Wako draft constitution precisely because it was a blueprint perpetuating a continuation of the same post-independence ideology against devolution started by Kenyatta in 1963.

As early as independence, it was clear that Kenyatta's cronies of elites were strongly against a three-tier devolution with national, regional and county governments. Their position currently manifesting through views held by Central Province MPs, has not changed today.

Kenya has now been presented with another great opportunity to write a new constitution.

Rift Valley was recently represented at the Naivasha PSC negotiations by Agriculture Minister Hon. William Ruto and Chepalungu MP Hon. Isaac Ruto among others. Representing the Central elites was Uhuru Kenyatta, Jeremiah Kioni and others, even tagging along Uhuru's cousin Beth Mugo as a very interested observer.

Let us look at what they came up with for devolution.

From the Committee of Experts (COE) revised draft constitution which contained a national government, 8 regional governments, and 47 county governments, the PSC started by first REMOVING THE 8 ‘JIMBOs’ (regional governments) as proposed by the PNU coalition of parties.

That was a swift act quite reminiscent of Jomo Kenyatta's 1964 action.

The elimination of the regional tier WILL DENY the small and weak counties an essential forum for co-ordination, and protection from undermining by the strong national government.

This means, without regions, and without administrative provinces, Rift Valley, either as a governance or administrative unit will be no more. There shall only be a national government and county governments (two tiers) entrenched in the constitution.

If you closely reflect what this means for instance at the South Rift, it means that majority of the Kipsigis will be sliced and diced into three counties, with some having their voices drowned out in Narok County, some dominated in Nakuru County, and the remaining having their say in Kericho district. The divide-and-rule dictum becomes apparent. The removal of a sense of communal unity becomes real.

On top of that, these county governments like Kericho will be weak and exposed to undermining by the national government at Nairobi because there will be no regional government to shield them.

The Ruto-Kenyatta driven PSC also retained in their proposed draft, administrators like DCs, Dos and Chiefs who will still ensure that the national government remains effectively in charge of local governance within the already weak counties. Thus locals will have undermined say over local governance and resources.

If William Ruto wants to soon face his constituents with this arrangement he helped Kenyatta's PSC allies chart, selling it as devolution, that would be the biggest fairy tale ever told.

Essentially, by removing the regional tier, which protects county governments, and retaining administrators, meaningful devolution has been killed yet again.

Any curious and keen observer will note that these ‘devolution’ proposals are essentially the same ones forwarded by the Wako draft constitution that were rejected in 2005.

In killing real devolution, the PSC also did something significant. The all-important independent Commission on Revenue Allocation with the mandate of determining the basis of sharing revenue from national resources was struck out, and its role retained by Treasury in Nairobi.

That was the clearest statement from the PSC that there were basically no real defenders for devolution in that Naivasha get-together.

Treasury is part of the National government and it is not expected to fairly and justly divide resources between the various levels of government. Thus instead of a national resource allocating mechanism, the powerful President, and whoever he/she appoints Finance Minister, will retain the powers to distribute resources to counties. In any way you want to look at it, this does not pass for change.

This is definitely not what Rift Valley has been clamoring for and it would be unbelievable to any lay Rift Valley resident that Senior Rift Valley leaders were sitting in these PSC deliberations that came up with these proposals.

That is until folks remember the history of Moi, Kenyatta and Majimbo.

History has repeated itself and Rift Valley peoples' aspirations have been thrown out the window in exchange for personal promises for a single individual.

RESOURCE ALLOCATIONS

Now that we have seen that the resource allocation mechanism has been retained at the Treasury, let’s see the formula the PSC suggested for disbursing resources from Treasury – just as a guideline.

Basically, PSC has allowed political patronage to be the basis for future resource allocations. Treasury has historically used political patronage to allocate resources inequitably, so this has been retained. Future wielders of Presidential power will wield the power over resource allocation.

In the draft, the PSC suggested that the 47 county governments receive only 15 per cent of the revenue collected by the national government, based on the last audited public accounts approved by Parliament.

That means, if this draft constitution comes into effect in 2013, the available audited accounts may be those of 2009/10, on the basis of which the 47 counties will receive a paltry Sh85 billion out of a potential expenditure of Sh1,000 billion.

Now divide Sh 85 billion by 47 counties and each government, for instance the populous one in Kericho, gets only Sh 1.8 billion per year. As the cash is sent to county governments, the strong national government will simultaneously relieve itself many development obligations and payment of salaries of public servants in the county. That is where the cunning PSC team hopes to hoodwink masses.

In typical PNU cunningness, PSC capped the resource allocation to counties in the Constitution to the figure 15% irrespective of any mitigating circumstances.

This is yet another clever ploy by PNU to put a CONSTITUTIONAL CAP, shielding taxpayer money inside the Treasury, with very little going to the periphery.

Again in PNU style, to hoodwink poor regions (during the referendum) that their areas are being given consideration, the crafty PSC drafters proposed that marginalised regions will receive a grant of 0.5 per cent of the revenues, which amounts to a paltry Sh2.8 billion, to cover infrastructure projects in ‘health, water, roads, electricity and other necessary services’.

This was loftily said to be motivated by the desire to ostensibly ‘bring them to as nearly equal a state to the rest of the country as possible’.

Now, let's be serious, how will this tiny amount of money spread over a third of the counties (16 counties, several in the Rift Valley) reverse a legacy of deprivation and neglect?

Splitting Sh 2.8 billion between 16 counties in arid and semi-arid regions means each county gets just an extra Sh 175 million per year.

The PSC knows these are just gimmicks.

SENATE

The PSC also went ahead, as driven by the PNU Coalition, to devour the Senate, which is supposed to be a legislative body that protects regions against marginalization.

After killing the regions, the so-called senate was deliberately incapacitated and rendered toothless, by the PSC, and is now akin to the forum for authorities in the infamous Kilifi Draft whose proposals were completely rejected in 2005. Are the people of Rift valley aware of this?

EXECUTIVE

To illustrate how divided Rift Valley’s voice was while entering this debate, it is noteworthy that Chepalungu MP, Isaac Ruto, favored a parliamentary system while Agriculture MP,William Ruto, proposed a pure presidential system.

Someone must have been bidding on behalf of external forces and sure, the pure presidential system carried the day.

But how is the pure presidential system likely to impact Rift Valley residents in case Rift Valley doesn’t produce a President for a long time?

If a parliamentary system was adopted, as Isaac Ruto suggested, Rift Valley MPs would definitely have a formidable voice of representation and parliamentary voting bloc that would guarantee safeguards against marginalization, unfair resource allocations and under-development.

However, under the pure presidential system proposed by William Ruto, Rift Valley will have to depend on the whims and mercy of that powerful President. Nobody can guarantee who the President is going to be in 2012, 2017, 2023 etc.

In our country bedevilled by corruption, ethnicity, political patronage and impunity, the proposed pure presidential system offers a perfect platform for the elected President to morph into another imperial ruler favouring select regions.

This leaves Rift Valley and all other regions in a precarious situation, simply depending on goodwill and hopes that a 'favourable' Presidency comes by. Unfortunately, that possibility cannot be guaranteed at all times.

Ever Province in Kenya has tasted what a hostile Presidency can be like, when political expediency overrides parliamentary decisions, with the executive invariably disregarding recommendations, resolutions and/or directives of the House, with little or no sanction.

REPRESENTATION IN PARLIAMENT

Despite false arguments being forwarded by PNU MPs, the truth of the matter is that Central Kenya did benefit from adequate representation over the years since independence, compared to other regions. The appalling inequality between Central and Rift Valley is testimony enough.

Poverty index is higher in Rift Valley (more than 55%) and lowest in Central (at only 31 per cent). We cannot marginalise parts of our country including Rift Valley (parts of which are arid) and then go ahead to claim that they do not deserve more representation.

During the Naivasha constitution debate, Central Province MPs in the PSC led by Uhuru Kenyatta and Jeremiah Kioni, insisted on redrawing constituencies in the constitution because they claim areas occupied by GEMA, are under-represented in the House.

They falsely claim that Rift Valley and North Eastern provinces are “over-represented” because of former President Moi’s influence.

With sure help from William Ruto, Ababu Namwamba and Isaac Ruto in the PSC, the Central MPs (ignoring the professional job being done by the Independent Boundaries Commission) have thus "fixed" this "anomaly" by creating a relatively sizeable number of new constituencies in Central, Nairobi, Upper Eastern, and parts of Rift Valley occupied by GEMA.

Of the 80 new constituencies created, all regions benefited from a few more extra seats, but the GEMA region is slated to get the lion’s share of extra seats, cunningly distributed across four regions (Nairobi, Central, Upper Eastern and parts of Rift Valley they occupy).

For certain, their relative parliamentary strength will only be felt in future if the draft remains as proposed. A lot of CDF funds will also be directly heading onto these new GEMA constituencies thus allocating direct resources to their people.

It is baffling that Rift Valley MPs did not question the fallacious argument about Central Kenya being ‘under-represented’.

Based on 2005 population projections by ECK, and the recently concluded Census, Central’s population has in fact been shrinking.

Indeed, Central Kenya has relatively lower average population per constituency/MP at 139,000 than all the other provinces except North Eastern.

For every one constituency in Central, there is an average of 139,000 people, while in Rift Valley, for every constituency, there is an average of 171,000 people. Which province is therefore under-represented in reality?

Another important thing that affects representation in Rift Valley is geographic size of constituencies. When we look at the average geographical size of constituencies, Central’s is only 456 square kilometres, compared 3,700 sq. km for Rift Valley.

Thus an MP in Central Kenya travels only 456 square kilometres (in good roads) to meet 139,000 constituents while his counterpart in Rift Valley covers 3,700 (of rough terrain) to meet 171,000 constituents. Based on this size alone, the constituency in Rift Valley deserves to be split.

Indeed, people in Rift Valley had a chance in Naivasha, to demand a ceiling on the geographical size of their constituencies but they simply did not.

William Ruto, Isaac Ruto and other Rift Valley MPs should explain what they were doing at the PSC resulting in this blatant disenfranchisement and further marginalization of their own people.

Has William Ruto ever considered this - Moi was guaranteed and rewarded his promotion by Kenyatta when he stiffled Rift Valley's constitutional aspirations like Majimbo precisely because he had no prior brush with Kenyatta's community. Compared to Moi in 1960s, is Ruto standing in a similar position today?

I tried  to retrieve the same document from Kalenjin.net where it had also been posted at the time. To no avail. It has since been removed from that site.

Looking back, would it have been better for Raila Odinga, Kalonzo Musyoka, Uhuru Kenyatta and William Ruto to have opted for a PARLIAMENTARY system back then?

With the benefit of hindsight, one would say yes.

It appears back then, political opportunism, expediency and myopia trumped and triumphed over principle and strict adherence to democratic values.

Many Kenyans will no doubt recall what my friend Miguna Miguna who has  made a name for speaking out his opinions candidly and  fearlessly on February 3, 2010:

VERDICT: THE PSC DRAFT IS NOT DIFFERENT FROM THE CURRENT MONGREL CONSTITUTION

Now that we have read the draft constitution by the PSC, can we confidently say that it is significantly different from – and an improvement on - the current one that Kenyans want nothing to do with? If not, why has it been hailed by various leaders as the salvation we have been waiting for?

PSC claims in its “report” to the CoE that its proposed draft Constitution “modified” the “Reviewed” Harmonized Draft based on powers donated to it by section 32(1)(c) of the Constitution of Kenya Review Act, 2008. Although my intention here isn’t to quibble with the obvious misstatements by the PSC, Kenyans need to know that the section cited only allows the PSC to deliberate and attempt to build consensus on “the contentious issues on the basis of the recommendations of the Committee of Experts.” The section does not permit the PSC to draft, redraft, modify, edit, amend or change the Revised Harmonized Draft Constitution.

As correctly noted by the PSC in its report, the CoE had identified the system of government, devolution and transitional and consequential provisions as contentious. In its report to the PSC, the CoE had clearly stated that prisoners’ rights, the Bill of Rights, electoral system, Kadhis Courts and land were non-contentious. Consequently, the PSC’s mandate was restricted and limited to deliberating and building consensus on and finally recommending changes to the draft to the extent of consensus reached on the three contentious issues.

But no; in its wisdom, the PSC usurped powers that do not legally belong to it and rewrote the entire draft Constitution. Without justification, the PSC deleted large chunks of the preamble, values, cultural rights, bill of rights, devolution, the legislature and the entire system of government.

For today’s discussion, I will deal only with the executive arrangement proposed by the PSC. How is it different from and an improvement on the current constitution?

Just like in today’s Constitution Kenyans have rejected, the PSC proposes that the president be head of state and government. S/he will address the opening of each newly elected National Assembly. S/he is also authorized to address a special sitting of Parliament once every year and s/he may address the National Assembly at any other time. The president appoints and dismisses all public officials including cabinet ministers, deputy ministers, ambassadors, high commissioners, permanent secretaries, heads of state corporations and even judges. S/he also creates and disbands public offices. The president is the commander-in-chief and can declare a state of emergency with approval of his cabinet. S/he may propose legislation to the National Assembly. In the PSC draft, the president also chairs both the national security and defence councils.

Contrary to claims by the PSC that they have constructed proper checks and balances that would prevent abuse and misuse of power; the contents of the PSC draft say otherwise. For instance, the president is immune from both criminal and civil proceedings. That means if a rogue president refuses to pay for food at a local restaurant or for the contraction of his private residence, there is nowhere an innocent Kenyan would go to obtain justice.

The much touted “independent” judiciary is still very much a toy for the executive. The “independent” judiciary does not have administrative, institutional, financial and political independence. The proposed “Judicial Service Commission” is comprised of mainly presidential appointees. It’s chaired by the Chief Justice and composed of two judicial officers, the Attorney-General, the chair of the Public Service Commission and a secretary who is the Chief Registrar – all presidential appointees. The only “independent” members of the Judicial Service Commission would be two advocates and two lay members. A team of six senior public officers appointed by the president and four “outsiders” is what the PSC calls an “independent judicial service commission! It’s not clear at all how the so-called “independent” judiciary would be a check on the executive.

In all likelihood, a president elected by 50 per cent plus one would have considerable sway in the National Assembly, which is categorized here, contrary to all historical precedents, as the “upper house.” Yet, it’s the same house that has been mandated with investigating, charging and passing judgment over president facing impeachment.

Apart from the fact that the process prescribed offends the principle of natural justice: one cannot be an accuser, a prosecutor and a judge all rolled up in one; it’s also practically useless. Natural justice demands that the investigative, prosecutorial and judicial functions be separated so that justice can not only be done; but it can be seen to be done. Needless to say, the removal of a sitting president by impeachment would not work as s/he would directly or indirectly control the National Assembly. Nor is there a provision for removal through a vote of non-confidence.

The PSC has retained the Provincial Administration minus the provinces. They have also proposed functionless “regional assemblies” without regions. And with 47 counties scattered all over the country, but largely concentrated in the Rift Valley and Eastern provinces, it is difficult to see how the PSC draft improves the current system of government. In many ways, it makes it worse.

What would Kenyans do if a president decides to stay in State House without venturing outside? How can Kenyans prevent a president from violating their rights, the constitution and laws of the land?

I would like to challenge those propagating this system to clearly explain to Kenyans where the checks, the balances and accountability mechanisms are before we are told to sing hosanna! And with the old Kanu vultures circling and regrouping, I fear for my country.

As Kenyans come to terms with the short and long term ramifications of a Uhuru Kenyatta  presidency, we should reflect on the following:

1. The role of mainstream politicians in watering down and bastardizing our highest ideals of democracy, social justice and equality;
2.The need to make urgent and thorough amendments to the Constitution to deal with issues about gender equality, parliamentary rule;
3.Eliminate the problems around the shambolic primaries by doing away with them altogether; this can be achieved by adopting proportional representation and party lists;
4. Carry out further structural reforms in bodies like the IEBC;
5. Revisiting the ICC issue by creating local courts and tribunals to deal with crimes against humanity and other serious offences;

Finally, to those who had invested a lot of hope and placed great expectations emanating from a  Supreme Court presided over by ex detainee, former member of the socialist underground and respected civil society figure, let us seek solace that the struggle for ultimate liberation of this country is and will continue to long, protracted, ardous with zig zags, u turns and setbacks along the way.

For those of us who look up to saviours and messiahs to rescue us from political perdition,  let us appreciate the stellar role such individuals play in contemporary political, social, cultural and ideological affairs while also reflecting on these cautionary words:

The role of great men [and women – Oloo] in history can be understood only by examining their activity in relation to the class struggle, to the activity of large social groups and to the struggle between these groups. Outstanding public men [and women - Oloo] are not the creators of events and movements but the leaders of the masses, of social classes. The support they receive from large social groups is, in fact, the source of their strength. No matter how gifted and intelligent these leaders may be in themselves, without such support they are powerless and incapable of exercising any significant influence on the course of events... Whether people with exceptional abilities come to the fore or not is inseparably connected with the operation of historical law.

‘There are always talented, gifted people in society. But only the appearance of a social need for people possessing certain capabilities, certain qualities of mind and character, can bring such people to the fore and create the necessary conditions for this. This is seen particularly strikingly in an epoch of revolutions, when hundreds of thousands of people come to direct public affairs, people who shortly before were quite unknown and who under the conditions of the old system could find no application of their talents and abilities. In exactly the same way the social demand in time of war creates conditions for the promotion of people possessing qualities of generalship. Who it is who comes to the fore under certain social conditions remains, of course, a matter of chance, the actual fact of the promotion of people whose qualities correspond to the needs of the age has the character of a natural law... Whether a particular outstanding public figure arises or not is a matter of chance, but this does not mean that anybody could occupy his (or her) place and carry out (their) historical mission. To perform that task appropriate qualities and abilities are needed. It is usually therefore people possessing such qualities to a greater or lesser degree who come to the fore as leaders..

 From, Otto Kuusinen, Fundamentals of Marxism-Leninism, Moscow, Foreign Languages Publishing House, pp.222-7.

 Onyango Oloo
Blogging from the Supreme Court Media Centre
Saturday, March 30, 2013
Nairobi, Kenya