A representative of the losing winner recently announced that the parties at the Peace Talks have agreed to enact a new constitution within the year. This good mind observes that this is not exactly an innovative outcome.
Kenyans have clamored for a new constitution for almost two decades now. The failure to heed this call and redress historical injustices or existing grievances through constitutional reforms is at the very heart of the ongoing political crisis. As a local daily recently reported, Prof Yash Pal Ghai, the former Chairman of the Kenya Constitutional Review Commission once remarked if Kenya failed to reform its supreme document in peacetime, it somehow would still have to do so in turmoil. In other words, Kenya’s constitutional reforms have always been an imperative, since independence. The current Constitution was a compromise document crafted to facilitate the emergence of the Republic. Kenyans had no say as to its contents; in fact there was no ‘Kenya’ then, only the East African Protectorate. Kenyans now want to have a say as to how they are governed, essentially, it is time to overhaul the social contract embodied in the current Constitution. It is time that Kenyans exercise this natural right.
That previous efforts have been scuttled is not surprising. There are deep and entrenched interests, both political and economic, to maintain the status quo.
Demystifying the status quo
Let me recap the institutional structure under the current Constitution.
Article 23 (Part II) of the Constitution of Kenya (1963 edition as amended to date) vests the Executive authority of Government of Kenya in the President. Article 24 also vests the powers of constituting and abolishing offices for the Republic of Kenya; of making appointments to any such office and terminating any such appointment in the President. The offices included in this mandate include those of the Attorney General, Chief Justice, Judges and Kadhi’s and Public Service Commissioners (the organ responsible for appointment of civil servants). Likewise, heads of parastatals and other stated owned enterprises are appointed by the President. The real kicker is Article 25(1), which provides that every person who holds office in the service of the Republic holds that office during the pleasure of the President. This means that the President can hire and fire officers at will (except for institutions with security of tenure such as the Attorney General or Chief Justice) and this breed’s supreme patronage in national governance. The President is also the Commander of the Armed Forces. These are subject to the Constitution and any other law.
The Constitution establishes the Legislature, Judiciary and Executive and outlines the powers and responsibilities of each organ. As far as the Legislature goes, the Constitution empowers the President to summon, prorogue and dissolve parliament. It also establishes the Election Commission and empowers the President to appoint the Chairman and other members of the Commission. The Constitution also provides for the establishment of constituencies and the conduct of elections.
Given these extensive unfettered powers of appointment, the unintended consequence is: the President owns the Republic, like a chattel. An irresponsible Presidency translates to dire consequences for the people of the Republic. Look no further than the imperial presidencies of Mwai Kibaki, Daniel arap Moi and Jomo Kenyatta, where powers are exercised with impunity and total disregard for national interests. Moi was often referred to as the ‘baba na mama’ (father and mother) of the Republic, an utter disgrace.
Moving Forward:
Kenyans simply want to reclaim their Republic. This will only be achieved under a new constitutional order, one that hands the power of governance back to the people and gets rid of imperial mechanisms. Since these constitutional reforms are long overdue, they must be achieved within the year. It is critical to the survival of the Republic. In terms of content, the reforms must be comprehensive and must cover the nature and form of government including the Legislature, Judiciary, and the Executive, other national institutions such as the Public Service Commission, Electoral Commission, fundamental rights and responsibilities and the like.
Kenyans have clamored for a new constitution for almost two decades now. The failure to heed this call and redress historical injustices or existing grievances through constitutional reforms is at the very heart of the ongoing political crisis. As a local daily recently reported, Prof Yash Pal Ghai, the former Chairman of the Kenya Constitutional Review Commission once remarked if Kenya failed to reform its supreme document in peacetime, it somehow would still have to do so in turmoil. In other words, Kenya’s constitutional reforms have always been an imperative, since independence. The current Constitution was a compromise document crafted to facilitate the emergence of the Republic. Kenyans had no say as to its contents; in fact there was no ‘Kenya’ then, only the East African Protectorate. Kenyans now want to have a say as to how they are governed, essentially, it is time to overhaul the social contract embodied in the current Constitution. It is time that Kenyans exercise this natural right.
That previous efforts have been scuttled is not surprising. There are deep and entrenched interests, both political and economic, to maintain the status quo.
Demystifying the status quo
Let me recap the institutional structure under the current Constitution.
Article 23 (Part II) of the Constitution of Kenya (1963 edition as amended to date) vests the Executive authority of Government of Kenya in the President. Article 24 also vests the powers of constituting and abolishing offices for the Republic of Kenya; of making appointments to any such office and terminating any such appointment in the President. The offices included in this mandate include those of the Attorney General, Chief Justice, Judges and Kadhi’s and Public Service Commissioners (the organ responsible for appointment of civil servants). Likewise, heads of parastatals and other stated owned enterprises are appointed by the President. The real kicker is Article 25(1), which provides that every person who holds office in the service of the Republic holds that office during the pleasure of the President. This means that the President can hire and fire officers at will (except for institutions with security of tenure such as the Attorney General or Chief Justice) and this breed’s supreme patronage in national governance. The President is also the Commander of the Armed Forces. These are subject to the Constitution and any other law.
The Constitution establishes the Legislature, Judiciary and Executive and outlines the powers and responsibilities of each organ. As far as the Legislature goes, the Constitution empowers the President to summon, prorogue and dissolve parliament. It also establishes the Election Commission and empowers the President to appoint the Chairman and other members of the Commission. The Constitution also provides for the establishment of constituencies and the conduct of elections.
Given these extensive unfettered powers of appointment, the unintended consequence is: the President owns the Republic, like a chattel. An irresponsible Presidency translates to dire consequences for the people of the Republic. Look no further than the imperial presidencies of Mwai Kibaki, Daniel arap Moi and Jomo Kenyatta, where powers are exercised with impunity and total disregard for national interests. Moi was often referred to as the ‘baba na mama’ (father and mother) of the Republic, an utter disgrace.
Moving Forward:
Kenyans simply want to reclaim their Republic. This will only be achieved under a new constitutional order, one that hands the power of governance back to the people and gets rid of imperial mechanisms. Since these constitutional reforms are long overdue, they must be achieved within the year. It is critical to the survival of the Republic. In terms of content, the reforms must be comprehensive and must cover the nature and form of government including the Legislature, Judiciary, and the Executive, other national institutions such as the Public Service Commission, Electoral Commission, fundamental rights and responsibilities and the like.
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