Remove dangerous clauses from the new document

BEFORE THE COMMITTEE OF Experts released the Harmonised Draft Constitution on Tuesday, it had gradually been preparing the ground by steadily leaking the contents to the media with the intention of testing the waters. But all that has emerged is that the committee has fallen prey to the adage: “The greatest lesson we learn from history is that we don’t learn from history”.

In 1992, through Amendment No 6, (f), the Constitution was amended to provide that: “The candidate for president who is elected as a member of the National Assembly and who receives a greater number of valid votes cast in the presidential election than any other candidate for president, and who, in addition, receives a minimum of 25 per cent of the valid votes cast in at least five of the eight provinces shall be declared elected as president.”

This amendment officially ushered in ethnic cleansing in Kenya. It was crafted by the opposition chiefs who hoped to deny President Moi votes from their ethnic communities so that he would not win in five of the eight provinces.

The result was that President Moi and his Kanu hawks did not only threaten instability, they actually caused it, with the intention of shutting out opposition parties from certain provinces and declare them pure Kanu zones. The vexing majimbo debate was also reintroduced during this period, with the same intention.

Page 24 of the Waki report states: “In the end, President Moi very reluctantly agreed to allow multiparty democracy in 1991…. . Although he agreed to multiparty democracy, [he] did not accept the idea that through this, he might lose the presidency.’’

Thus, it was in this period, in the 1990s, that violence became institutionalised during presidential and parliamentary elections. Under the amended Constitution, to win the presidency, Mr Moi needed to win his parliamentary seat, obtain a majority of the votes cast in the country, and receive 25 per cent of the votes cast in five provinces

Reports covering elections held during this period alleged that high-ranking political figures, civil servants, and others close to the heart of government used violent gangs to intimidate people in areas of potential opposition support.

The strategy was to keep opposition supporters from voting, and the means used was to hire gangs in the Rift Valley and elsewhere to kill people and displace individuals from their home areas so that Kamatusa (acronym for Kalenjin, Maasai, Turkana and Samburu) candidates would win and President Moi would be assured of obtaining 25 per cent of the vote in five provinces, and the majority of elected MPs. In short, violence became a means of securing political power.

IT IS THUS SURPRISING TO SEE THE Committee of Experts remain oblivious of the self-destructive nature of this proposition. A simple 51 majority win should be provided for instead – with a run-off provision included.

These eight provinces were created by the British through its policy of divide and rule, which is why, to date, they are merely ethnic enclaves. We should redraw them, just as African countries should redraw their borders since during the scramble for Africa, Africans did not have a say.

The Independence Constitution was dictated to Kenyan representatives in London, where they were flown at the Queen’s expense. None of them was well-versed in constitution-making. The aim of the Constitution was to protect the settlers who were granted dual citizenship.

Kenyan representatives at Lancaster House were selected on a tribal basis, and it’s recorded that their contributions there were marked by suspicion, and downright division. No referendum was conducted. A parliamentary or hybrid system is not viable. We watched with disgust as MPs were sworn in as Kenya burnt.

Their subsequent dismal performance, their refusal to pay taxes, threats to media through censorship laws, and how they have forced every Finance minister to retract the introduction of austerity measures, are clear illustrations that they are not well-equipped to act as watchdogs.

Their useless censure motions over imaginary corruption, and how they have become so powerful that neither the coalition principal can fire any minister no matter how inept, are other examples. Consequently, an executive prime minister elected by Parliament will be held captive by MPs. Kenyans would rather have a president directly elected by the people.

Two centres of power with divergent interests, as recently demonstrated over the fight for Leader of Government Business in the House, is a sign of what can go wrong. The President should nominate the prime minister from his own party and share executive power. We should all wake up if we want to save our country. These weaknesses in the draft constitution must be removed. Mr Waweru is a Nairobi-based advocate (ken_waweru@yahoo.com).