Why 2010 Constitution is ripe for changes

Monday, August 24th, 2020 13:00 |
The members of the Committee of Experts, led by their chairman Nzamba Kitonga (second right) after a meeting to draft the constitution in Naivasha in 2010. Photo/PD/FILE

A decade after the enactment of the 2010 Constitution, Senior Counsel Nzamba Kitonga, who chaired the Committee of Experts which drafted the Supreme law of the land after protracted negotiations, thinks time is ripe to amend the document.

From the onset, I must answer the question:  Do I support amendments to the 2010 Constitution?

Yes, I do, and this is why. First of all the 2010 Constitution was not singularly our document.

The constitutional review process was a bus packed with many passengers, conductors and touts, all of whom had vested interests. 

The document which was singularly the product of the Committee of Experts was “The Harmonised Draft”, which captured the spirit of the Bomas Draft, the Kilifi Draft and the Wako Draft.  

The Harmonised Draft was required by law to be submitted to the Parliamentary Committee on the Review of the Constitution sitting in Naivasha.

This committee made ad hoc, chaotic changes which altered some aspects of the design of the document. I will give some examples.

It is at Naivasha that for the first time in the history of this country the idea of a pure presidential system of government was born.

It was never in our independence Constitution, the post-independence amended Constitution, the Bomas, Kilifi or Wako drafts.  

The Harmonised Draft created a hybrid system of government with powers cascading from an elected president to a prime minister elected by Parliament and two deputy prime ministers, also elected by Parliament.

Naivasha threw out the proposal that Cabinet ministers be drawn from both Parliament and professionals.

This model was recommended to enable the President to tap expertise across the board as well as to accommodate political interests because countries are about politics.

But importantly the Cabinet would be answerable both to the President and Parliament.  This is a cardinal requirement in the delicate system of checks and balances.

 Naivasha also threw out the office of Leader of the Official Opposition. This is the ultimate symbol of checks and balances in governance.

A person and a party which has the support of over five million voters cannot be overlooked just because it lost the election.

Such a party must be given the honour of oversight in governance and the right to constitute an alternative government.  The leader of such a party would to be in Parliament to lead his troops.  

In the wake of the Handshake, the importance of this office is clear to all and sundry.  There must be visible oversight.

Naivasha, in its wisdom, also overrode the proposal that a presidential candidate could simultaneously contest a National Assembly or a Senatorial seat. Again these provisions were purposive. 

The idea was to create harmony in governance by ensuring that party leaders seat in Parliament with their troops to formulate and guide coherent responses to public policies and legislation.

We now have the awkward situation where opposition leaders consult with their MPs and senators in hotels.

The greatest tragedy from Naivasha was the mutilation of the Senate. For the first time in the history of the architecture of constitutions in the world, a Senate was designated as a “lower house”.  This had never happened anywhere else in the world.  

Even during the Roman empire the Senate was designed as the ultimate stamp of the peoples’ authority. 

We had drafted a seamless legislative system where Bills and oversight reports would originate in the National Assembly and proceed to the Senate for approval, amendment or  rejection.

The Bills would then proceed to the Presidency for assent.  It was envisaged that the system would provide quality legislation and microscopic oversight. 

We tried to repair the damage done to the Senate by giving it some powers, particularly in relation to devolved governance.

We also created mediation committees to avoid constant confrontation between the two Houses. However, even this has not worked.  

These are some of the Naivasha outcomes which have come to haunt the nation. 

Naivasha debacle

There are other matters that have arisen which are unrelated to the Naivasha debacle. 

The late British Prime Minister Harold Wilson once quipped that “a week in politics is a long time”.

I say 10 years and two elections in a country’s politics is a very long time. It is not humanly possible to anticipate every situation in constitution-making. 

We, for instance, created a Judicial Service Commission with the majority being judicial officers. 

We did not foresee that they would use their majoritarian numbers to give themselves a dominance and a head start in decision-making.  

The latest recruitment of Court of Appeal judges from within the Judiciary to the exclusion of the Bar and the academia was an eye-opener. 

Furthermore, the idea that judges can hear disciplinary cases against their colleagues or themselves has elicited grave misgivings.

It has become necessary to separate the Judicial Service Commission from the Judiciary. 

We may consider the Ugandan model where retired judges, senior advocates not in active practice and eminent respected members of the public comprise the JSC.

There is also the issue around the role and powers of deputy governors. It is necessary to consider a situation where a governor is charged with a crime relating to his or her office and it may be necessary that they be suspended in which case the deputy must assume full control of the office.

The powers of acting governors have to be clearly defined. There is need to avoid placing too many restrictions on an acting governor. 

They must be able to run the office seamlessly and with confidence.  But we must also avoid situations where they attempt to undermine all the work of governors and try to remove the governor’s appointees for no good reasons.

Identifiable gap

The other identifiable gap is imposing timelines upon the Presidency.  The Presidency has been delaying in making many formal appointments.

This has affected operations of some commissions, boards and the Judicial Service Commission.  

At one point court orders had to be issued directing the President to appoint judges.  We had not anticipated that such delays would arise.

Timelines and default clauses must be imposed upon the Presidency in executing its mandate.

There has been a quest to allocate more resources to counties. Many figures have been given but unfortunately these have no scientific basis.

We need to engage economists to assess the realistic budgets of the national government and county governments.

This is a gap that can actually be addressed through legislation because figures keep on changing.

 Statements have been made to the effect that the expansion of the Executive is meant to benefit a few individuals.

Such assertions are misleading. It is not possible to create an elective office then somehow give it to an individual.

There has to be an electoral process, in fact a general election culminating in the direct election of the President and the election of a prime minister by Parliament.

It is, therefore, misleading and scare-mongering to say that the creation of such offices will benefit specific individuals. If they are properly and legally elected so be it.

The other misleading assertion is to the effect that the Constitution should not be amended before its implementation is completed.

Implementation had short term and long term phases. Certain laws, actions and policies needed to be immediately undertaken to jump-start the enforcement of the Constitution. 

These comprised, for example, the appointment of a new Chief Justice, the vetting of judges and the passage of devolution laws.  

In the long term more than six hundred pieces of legislation need to be either amended or repealed and re-enacted afresh. 

Many policies and administrative actions also need to be reviewed.  This is a meticulous and painstaking process.

It will take many years for the implementation of the Constitution to be completed.  Implementation of the Constitution is not an event. 

It is a long drawn permanent process.  It would be unfair to fail to address glaring concerns with regard to constitutional amendments because implementation has not been completed. Both processes can proceed concurrently.

Although the Building Bridges Initiative is a welcome move there are valid concerns that it is not anchored in law. 

It is also meant to address a broad spectrum of matters and not constitutional amendments alone.

Any proposed constitutional amendments must be placed before Parliament whose duty it is to develop the way forward.

Kitonga’s views were submitted to the Constitutional Implementation Oversight Committee.

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