New Constitution a must for Kenya nationhood

• Kenyans do not want an imperial head, but neither do they want two centres of power.
• Kenyans want to directly elect their CEO.
• Kenyans want inexpensive devolution.
• Kenyans want a credible, dependable justice system.

We have had a most interesting debate on how we want to be governed going forward. From what Kenyans are saying, a couple of imperatives are emerging:

1) Kenyans do not want an imperial head. They do not want winner-takes-all electoral outcomes. Come to think of it, in past presidential elections, we had no clue who the Vice-President would be or even what kind of government the winner was going to form.

In a diverse society such as ours, this has not been appreciated. Kenyans would like to have a real good idea who the winning candidate will go to bed with pretty up front to enable decision making. It’s something I think we should support so that we know exactly what kind of leader we would be electing.

In a sense, the way ODM run their campaign with a Pentagon is probably something that we should do more of as Kenyans get to know early what kind of people will be running the country beyond the ‘king’.

2) Kenyans do not seem to want two centres of power. This is interesting because at the same time, they do not want to give anyone ‘imperial powers’. We must examine this and maybe try to reconcile the two positions. I do not necessarily believe that a compromise as proposed by the Committee of Experts (COE) is necessarily right.

Bringing the group that supports a parliamentary system and one that supports a presidential system to a middle ground may actually mean that you have 100 per cent unhappy people.

This may need to be re-examined and it might be easier to work on improving either the presidential or parliamentary system to gain more support from either side. Cases across the big wide world tells us that it’s really either system that has been most successful and cases of hybrid are rare and far between.

3) Kenyans want to directly elect their CEO, whether that CEO is a prime minister or a president. They want a pretty direct way of deciding who it is to be the boss. However, I believe if we go for a parliamentary system, we need to review the mode of representation in parliament to ensure that as much as possible, every MP’s vote is as closely equal to the other MP’s vote as possible.

If we have to be sure that we stick to the age-old democratic ideal of one-man one-vote, then the MPs who in many senses ‘elect‘ the prime minister should be as representative as possible. Some statistics show that some constituencies like Embakasi or Molo or Sabatia, represented by one MP would be equal to 3 or 4 MPs of other constituencies. For the parliamentary system to work, this must be reviewed to allow only a small variance between constituencies. If we do this, then when we have a prime minister coming from the largest party in Parliament, we would know that he does actually represent Kenyans equally.

It is also important to factor in practical issues like size, for example in North Eastern province where to have same population size may mean having too big a constituency for an MP.

On the other hand, if we go for a presidential system, Kenyans would want a lot more checks and balances on the president to ensure he does not have absolute powers to execute anything and everything. Any key appointments proposed by the President must be vetted and approved by Parliament. He would also name his running mate upfront and Parliament would need to have a lot more power to remove him from office in the event of non-performance. In the USA, President Obama can hardly appoint anyone to any office without consulting Congress!

4. Kenyans want devolution but inexpensively. After experimenting with CDF, Kenyans do want a lot more devolution and want a lot more say at the grassroots on what the local priorities are and want to have the funds to implement them. However, they are wary of a structure that creates a big bureaucracy and guzzles the funds before they reach the intended use.

The size of the two Houses and counties is something that would need to be carefully evaluated to ensure we are not setting ourselves up for failure.

5. Kenyans want to rekindle their faith in the justice system. One of the big issues of the last general election is the fact that the protagonists were not willing to go to court as there were fears that justice would not be done.

We need a supreme court in the land, manned by men and women of integrity and which has security of tenure. That bench should be beyond reproach and the way judges are recruited must stand the test of scrutiny. This is very critical to the survival of the democratic dispensation that we are yearning for in the new constitution. This is what saved democracy in the USA when Al Gore disputed the results of Florida in 2000. It is that court which ‘ruled’ Bush to be president.

I am sure if we stick to such principles of how we want to be Governed and ensure that we incorporate on each system the necessary checks and balances, then it might even be better to put to referendum a choice of a well thought out Presidential system or Parliamentary system for Kenyans to vote between the two. At the moment, should Kenyans say no to what is being proposed, we would be back to square one.