Kenyans should reject NCCK's constitutional proposals

Kenyans should reject the National Council of Churches of Kenya's (NCCK) counsel on how to resolve the political crisis.  

On October 31, 2017 the Programme Committee of the NCCK issued a statement on the state of the nation and outlined a proposal for the way forward.

In its statement, which was reiterated in the Executive Committee on November 15, NCCK asked Kenyans to consider as a resolution to the political crisis, a parliamentary amendment to the Constitution to create additional positions in the national Executive for politicians.  

Kenyans must reject this advice for three reasons. First, what NCCK is asking Kenyans to do is against the Constitution and the law.

The Constitution was promulgated on August 27, 2010 and Parliament, in the Fifth Schedule, had five years to enact all implementing legislation required.

This was a mandatory constitutional and ethical obligation of the national government, led by the Executive but to be executed by Parliament.  

However, despite the Constitution’s express requirements on the composition of Parliament as well as multiple court orders, Parliament has refused to enact legislation to implement Articles 27(8) and 81(b) which dictate that not more than two thirds of the members of elective public bodies shall be of the same gender.

The risk of government non-compliance with the Gender Principle has been in the public domain since 2012 when the Attorney General warned of a constitutional crisis. 

The ramification of Parliament’s repeated refusal to comply with the Constitution is that the current Parliament, with the knowledge and acquiescence of the Executive, is in continuing violation of: the national values and principles of governance (Article 10); the Bill of Rights (Article 27); leadership and integrity (Article 73); the principles of the electoral system (Article 81) and most significantly in violation of Chapter One Sovereignty of the People and Supremacy of the Constitution (Articles 1,2 and 3).  

TRIBAL MATH

An unconstitutional Parliament lacks the legal legitimacy as well as the moral authority to enact any law.

An unconstitutional Parliament therefore cannot enact any constitutional amendments as prescribed in Chapter 16 on Amendment of the Constitution. 

Whether NCCK is ignorant of the record of parliamentary non-compliance and the illegality of the 12th Parliament, or whether like the Government they are selective in the provisions of the Constitution that should be enforced, Kenyans should be deeply concerned that NCCK would fail to identify this constitutional crisis and further advocate for an unconstitutional body to take the lead in resolving it.  

The second reason Kenyans should reject the NCCK proposal to amend the Constitution to create additional positions in the national executive is because this proposal does not address the inclusion concerns of Kenyans.  

There is a tendency to reduce inclusion to a discussion about tribal math and ethnic accommodation as represented by individual political elite representation.  This is the model we used prior to 2010 but one that Kenyans rejected in 2010 when we promulgated the Constitution.  

Inclusion is about the representation and accommodation of difference, different Kenyans and different interests.  Kenyans adopted a governance framework that sought to ensure greater participation of more diverse Kenyans -men and women, young people, people living with disabilities, minority groups and religions in all public positions at both levels of government.  

However, inclusion isn’t just about having people that look like us or speak our language in public leadership, it is also about the representation of different interests as Kenyans.  Whatever their ethnicity or gender the current political elite have tended to have an unanimity of interests that do not reflect the pressing day to day issues of ordinary Kenyans.  

While the NCCK proposal focuses on including more politicians no attention is paid to inclusion in terms of the needs of the majority of Kenyans; from affordable and accessible healthcare, quality public education to ensure equal opportunities for participation, prudent, transparent and accountable use of public resources, service delivery, job creation-these interests are completely absent in the NCCK proposal.  

CYCLE OF IMPUNITY

By focusing on accommodating politicians at the national executive level, the proposal is:

(a) retreating from the de-politicisation of the Cabinet that was intended promote technical competency and service delivery (merit) over politics and patronage; and

(b) elevating the needs of politicians over those of millions of Kenyans for quality education, affordable healthcare, clean water and an enabling political and economic environment for Kenyans not in political office.  What underlies the NCCK proposal is an assumption that Kenyans can wait, that the priorities of ordinary Kenyans are secondary to those of the political elite whose interests should take priority.  Kenyans must decide if they are willing to accept to wait patiently until the interests of the politicians are addressed.

The final reason Kenyans should reject NCCK’s proposal is because it perpetuates the political cycle of impunity that benefits those who break the law and incentivises criminals to seek political office as a means of evading accountability.  

When the response to government perpetrated illegality and an engineered constitutional crisis, is to profit the same players (whether in or out of government), then we are building a governance system that rewards and promotes illegal behaviour.  

In the case of the Gender Principle in Parliament the lack of compliance is the result of deliberate institutional and political intransigence over an entire parliamentary term.  

This is not an oversight; it is a deliberate choice by government and the political elite to act in a manner that contravenes the law, gambling that Kenyans will not hold them either individually or collectively accountable. 

For NCCK to ignore this deliberate illegality demonstrates the lack of impartial, credible leadership required to steer out of the current political crisis.  

CEDING POWER

When citizens and those who purport to lead are silent in the face of repeated illegalities perpetrated by institutions and political leaders charged with their implementation, they abdicate individual and collective responsibility for their lives and the destiny of their nation.  

By tolerating, ignoring or explaining away the government’s, and politicians’ obligation to act subject to the law Kenyans are slowly but surely ceding power to the criminal elements in society and fast tracking their full-scale seizure of politics and the institutions of government.

If citizens and non-state actors including NCCK are unable and/or unwilling to limit the government and the political elite to act in accordance with the Constitution; an amended Constitution isn’t the solution.  

The political crisis presents an opportunity for Kenyans to affirm and re-assert the legitimacy and supremacy of the Constitution of Kenya in its entirety over the interests of all political actors and institutions.  

It remains to be seen whether Kenyans will seize this opportunity and begin to tame rouge political actors or they will be cowed and cajoled into rolling back the gains of the Constitution of Kenya 2010 and once again elevate the interests of a political minority over those of millions of ordinary citizens.

Marilyn M. Kamuru is a lawyer and a researcher on women’s rights issues.