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A searchlight on the new constitution

Pheroze Nowrojee: Election Losers Too Run the Government

Posted by Popular Ombudsman on February 18, 2010

From The Star
As we enter 2010, we ponder over the coming year.

In a period where the expectations of a new constitution feature high, it is of value to consider too our expectations of how elected leaders must rule under our system.

The traditional Kenyan concept was that government represents all society and that all parts of society must see themselves in the face of government. That is how our traditional societies designed the organisation of ruling.

Then we took the Westminster model. We found then that the losers of the prescribed elections were not seen in government. We found too that government did not then see itself as representing all Kenya. It made some regions of the country prosper, and made others decline into depressed economies with dropping education and nutrition levels. We saw that under that system, the winner took all.

The fault was not in the system. We chose to distort it. Our leaders believed that if they won an election they did not need to consult those who had lost. The winners believed that for the next five years they did not need to listen to those who had lost, and certainly did not need to have their consent to anything.

The leaders who had lost the election were shut out of both government and governing. The result was misgovernment.

The reality is different. The reality is that even after an election, the winner must seek out its opponents and rule with the consent of all. The reality is that all government needs consent.

‘The consent of the governed’ is not of only a part of the country, but of it all. This is what Harold Macmillan, the Prime Minister of the United Kingdom from 1958 to 1964, (over the period of our independence), told a Kenyan politician, who wrote later: “As usual, Macmillan ranged over a wide field .. .

In particular he pointed out that it was impossible to govern Great Britain without the consent of the opposition and it was essential to have their agreement on many large issues.

Whatever happened at the elections there was a broad measure of agreement on many intricate national matters such as the position of the monarchy, the development of the nuclear deterrent and on basic economic issues, which maintained the so-called af-fluent society.”

Kenya’s ‘intricate national matters’ are even more pressing. We cannot successfully attack the emergency that we face after 45 years of misrule: 45 per cent of Kenyans below the poverty level. This means every day over 18 million Kenyans are living in poverty.

To move 18 million people out of poverty is a major task for any government. A government that continually and in every way attacks its opponents in Parliament, administration and the media, cannot solve this problem.

This is the type of government we have had from 1966 to 2008. Such an attitude breaks two expectations of good government: it does not solve the country’s problems, which become chronic; two, it breeds intolerance in society at large. We have seen exactly both happening.

The process of government works best as a consultative process, rather than as a process of imposing the will of one party or person upon all others. Consultation encourages greater tolerance in society. Both in government and in society at large we need support for the tolerance that Kenyan society has always had, and still has, but which politicians have worked so selfishly and so long to erode for their own personal gain.

The opposition is a check mechanism, not an exclusionary device. It has a formal position called the Leader of the Opposition, performing two functions. From the opposition, it requires loyalty to national processes even when out of office.

From the successful party it requires consultation with those against it, even though the latter are out of office.

The Westminster model works with more than constitutional written laws. It works with unwritten social conventions and values. Our social conventions and values are needed to make our new constitution work.

Thus in 2010, when we change the details of our constitution, we need also to change the way in which we will operate that new constitution, the way we rule. We will need to bring in our values of respect for tolerance and wisdom. Only with these, enabling ruling by broad consent and government, will we bring about the change which we want 2010 to herald in.

-The writer is a well known constitutional lawyer.

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Draft law: Experts boost senate powers

Posted by Popular Ombudsman on February 11, 2010

Oliver Mathenge(Daily Nation)

The Committee of Experts (CoE) is reported to have enhanced the powers of the senate in the revised draft to be debated in Parliament later in February.

The senate will have legislative authority and will also be superior to the National Assembly, contrary to the proposals made by the Parliamentary Select Committee (PSC).

Other changes include the direct election of two senators, not one, in each of the 47 proposed counties. The experts are also said to have given the Senate powers to overrule presidential decisions.

This is likely to generate much heat from the MPs as this would make them less powerful than the senators.

Constituencies

The experts have also maintained the number of constituencies at 290, with an amendment that this is the maximum number of MPs the country can have.

“Using the words ‘up to 290’ we have given the boundaries review commission the liberty to create even fewer constituencies,” said a source at the committee.

In addition, the experts are said to have decided that the presidential and parliamentary elections be held on the same day. The Naivasha draft had proposed that parliamentary elections be held in August and the presidential poll in December.

The threshold for presidency has also been raised, with the new proposal now requiring 25 per cent in at least 28 of the 47 proposed counties. It raises the number by five counties from the MPs’ proposal.

However, in a move likely to avert a crisis between the CoE and PSC, the experts have accepted most of the changes made by the politicians in Naivasha. They have also set aside some issues that they want to discuss with the PSC next week.

Among the issues to be discussed include the Bill of Rights and in particular the issue of when life starts, kadhi’s courts and transition clauses on the Judiciary.

The draft currently being reviewed by the CoE is expected back in the PSC by February 19. It is to be tabled in Parliament by February 26 for a 30-day debate.

Elsewhere, lawyers want all judges to be sent home pending vetting under the draft constitution. The Law Society of Kenya (LSK), in a meeting with Justice minister Mutula Kilonzo, on Wednesday expressed dissatisfaction with the move by the PSC to scrap a clause that required vetting of the judges.

According to LSK boss Okong’o O’mogeni, this will be the ultimate test for the Judiciary in its quest to institute reforms.

NOTE: At least this CoE still has a chance to demonstrate that it listens to the citizens. That is why they are there in the first place…to see where we disagree with these politicians.

Additional reporting by Benjamin Muindi

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