I read with great concern a commentary by Mutahi Ngunyi early this week (SN, June 20) in which he suggests that the Proposed Constitution will extend the term of President Kibaki and Parliament up to 2015. This conclusion is hardly factual.
The Committee of Experts, in line with the wishes of Kenyans, has ensured there is no secrecy about the date of future elections, and that there is a consistent set date for the day of the General Election, including the one to be held in 2012.
Certainly, there will be no extension of either the presidential election or the term of the Tenth Parliament. In the Sixth Schedule of the Proposed Constitution, which deals with transitional issues, Article 3 clearly provides for the extension of the provisions of Chapter 2 of the current Constitution concerning the Executive until the next General Election.
Under section 9 of the current Constitution, the President can only hold office for five years from the day he is sworn in. The Sixth Schedule of the Proposed constitution provides that persons occupying the offices of President and Prime Minister immediately before the effective date shall continue to serve in accordance with the former Constitution until the first general elections.
This means that the last day that President Kibaki can possibly hold office is December 30, 2012. A presidential election must be held on or before this day. To determine which day that will be, one must refer to the provision of the Proposed Constitution that states that the election of the President shall be held on the same day as a general election of Members of Parliament, being the second Tuesday in August, in the fifth year.
If one reads all these sections together, it means the date of the next general election will be August 13, 2012. Until this date, the current President still retains all his executive powers under the former Constitution, including the power to dissolve Parliament for the 2012 election. In other articles, Mr Ngunyi has claimed that the Proposed Constitution removes the immunity of President Kibaki from criminal prosecution, and that Prime Minister Odinga will call an early election facilitating a civilian coup.
How this is possible when the transition clauses speak about the continuity of the Executive as it is till the next election, and where there is a pre-determined election date on the face of the Proposed Constitution, is just one pointer to the fact that Mr Ngunyi has either not studied the document at all, or is deliberately misleading the public.
In yet another article earlier this month, Mr Ngunyi claimed that the Proposed Constitution would disband the Provincial Administration and allow the Armed forces to unionise. Anyone who has read the document knows that there is nothing further from the truth in this; there is a specific provision which retains the Provincial Administration who will be part of the National Government implementing national obligations under Schedule 4.
Article 24 (5) of the Bill of Rights makes specific exemptions of the Armed Forces and Police Service from joining trade unions or participating in protests. Mr Ngunyi also suggests the Judiciary and the Attorney-General are aggrieved by the draft, though the CoE consistently engaged, and indeed, took on board, most of the reforms proposed by the Judiciary, and that the AG is himself a member of the Committee of Experts.
The 'Nation' is to be lauded for its efforts to separate myths from facts in the document. It is regrettable, therefore, that one of its columnists continues to contribute consistent misinformation, distortions and plain untruths. Mr Ngunyi, to use his own words, is being “clumsy, thoughtless and reckless”.
If this is from lack of information, he is best advised to take up some classes during the civic education being conducted by the CoE on the Proposed Draft, so that like other Kenyans, he is able to make an informed choice on the referendum. If, on the other hand, he is deliberately misleading the public for whatever the reason, Mr Ngunyi, who is a godly man, ought to know that credibility is a political analyst’s greatest asset. It would do well for him to read the words of Proverbs 9:5: “A false witness will not go unpunished, and he who breathes out lies will not escape”.
Ms Ndung’u is a member of the Committee of Experts on the Proposed new law.