an East African perspective
I cannot be persuaded that the only important constitutional issue in Kenya is the executive powers of the president or the prime minister. In the same vein, nobody can convince me that a duly elected popular leader must be the one to wield executive power just because he is elected by the people. If that were the cause, Hitlerâ€™s popular vote did not prevent him from carrying out genocide in his own country.
Let mainstream media give Kenyans a break so that they can debate this draft with sobriety. Let it not be a PNU-ODM, Kibaki- Raila contest. Kenyans are past that. They fought a bitter war in 2005 and both sides lost. They repeated the same fight in 2007 and again, both sides lost. That is why both sides are in a coalition. Nobody won the elections. It is therefore pointless to incite the public or different ethnic communities to begin viewing the draft in terms of Raila or Kibaki.
This constitution is for Kenyans. It is not for Raila Odinga or Mwai Kibaki.
These two leaders in 10 years from today will be history just as Moi is today. Moi scuttled the constitution process in November 2002 thinking that without it he would influence Kenyaâ€™s politics. Today, he is a spectator. Let Kenyans zero in on aspects of the constitution that make sense to Kenyans such as a devolved government, two chambers of parliament, a recall clause for MPs and the right to education for Kenyan youth. Let them entrench anti-corruption law into the constitution so that whoever defrauds public funds would know that he or she would be violating not just an Act of Parliament but the fundamental law of the land. Let us entrench an oath by which all elected leaders will swear that they will not steal public funds and that they will set examples of good citizenship by paying their taxes in full instead of hiding their incomes in sitting allowances.
The draft constitution under the Bill of Rights proclaims that every Kenyan child will be entitled to free and compulsory primary education. This is well and good however, let the constitution go further and clearly state that â€œEvery Kenyan child will be entitled to free education up to the maximum that their academic ability can take them and that the state will guarantee them this rightâ€. On the cabinet composition, the draft has not gone far enough.
Twenty members of the cabinet for a tiny country like Kenya are extravagant and ill-conceived. Now that we are proposing a three tier government just like United States of America, we donâ€™t need too many Cabinet ministers because most of the government will be in the regions.
In the USA, a country of 50 states and 300 million people, the Obama administration has less than 20 federal cabinet ministers. India, the largest democracy in the world with a population of 1.9 billion people only has 19 cabinet ministers.
In my opinion, 8 cabinet ministers, one from each Province would be the ideal situation in the next dispensation.
While on the cabinet formation, let us be candid about things. The reason why we have a dysfunctional government is because every Tom Dick and Harry who gets elected to our Parliament expects to fly a flag back to his or her village. Those left out even in an unwieldy cabinet such as ours start whining. The new constitution gives us a chance to permanently bar elected MPs from serving as ministers at the same time.
Let us select technocrats who have no allegiance to village constituencies to serve as our ministers.
However, for those MPs that are nominated for consideration by Parliament must relinquish their seats as MPs once they are recruited into the cabinet. It is the only way we will have true separation of powers.
On press freedom, it is good the constitution strives to embed these rights so that past situations where media houses have been raided for one reason or another do not recur. However, freedom of speech should never be allowed to extend to those that will abuse it by engaging in oral sex on our airwaves. The only way these pornographic broadcasters can be allowed to operate is to deny them free-to-air licenses. They have to be confined to subscriber-based cable channels so that their clients can pay to watch. If they want free to air licenses they must play according to the rules of common decency. No freedom can be absolute.
On broadcast frequencies, the current multiple holders must appreciate that internationally, frequencies allotted to each country are regarded as national assets just like oil, minerals and other natural resources that must equitably be distributed among first, Kenya nationals before foreigners are considered. Therefore the rule of one frequency one broadcaster must apply so that diversity in thought is maximised.
The current situation where one broadcaster can hoard up to 60 frequencies for speculation purposes must be disbarred in our constitution.