What we need in a pre-2022 elections constitutional review

Speaking at Kisumu on December 13, President Uhuru Kenyatta manifested his wish to making the 2010 Constitution a blue print for ''a perfect union'' – one of the legacies he wishes to leave behind when he vacates office in 2022.

This is a most welcome pledge. He has acted on the correct view that democracy, as a system of government, is, everywhere in the world, work in progress. Even such old democracies as Britain and the US have not attained full democratic governance. Every generation in the democratic world has a duty to strengthen the democratic institutions it finds in place.

The President formally opened a debate on both the content of the reforms and the process. He is quoted as having stated: "We must examine whether our winner-takes-it-all approach to elections is a good or bad thing for the Nation. We must then find the ways to address it."

Five things are significant about that statement, the first being that it was made in an area where the voters were so disgusted by our electoral system that they decided that they would not participate in the repeat Presidential elections held on October 26, 2017. He also made the statement in an area where people chose not to vote for him.

The implied message was that when he leaves office, he wants the country to have an electoral system in which the voters and the elected have confidence.

PROPORTIONAL REPRESENTATION

The second thing the President implied in that statement is that when it comes to undertaking the review, everything will be on the table. There will be no sacred institution. He expressly referred to the proportional system of representation of the kind that obtains in Germany, Israel and New Zealand where parliamentary systems of government exists as an alternative to be accepted or rejected. In those countries, the executive power of the government is wielded by a Prime Minister who is assisted by a Cabinet formed from the political party with the majority of Members of Parliament or from a coalition of political parties which have decided to work together. The Head of State is a ceremonial one.

In Germany and Israel, he is called the President while in New Zealand, it is the Queen who has a representative. The system of proportional representation also obtains in Australia.

TRANSFORMATIVE CONSTITUTION

The alternative to this system is the American type of the Presidential system where the President is not a Member of Parliament and the Cabinet is chosen from among those who are not Members of Parliament. This is the system we have in Kenya today. By referring to the opposite of winner-takes-all which obtains here, the President was emphasising on how open-minded Kenyans should be when it comes to undertaking the review.

Indeed, some of the constitutional reforms needed are merely administrative. Apart from a few areas, the 2010 Constitution is a good document which the Judiciary is using to transform the governance of the country admirably. Among other things, the Court has held that the Constitution is a transformative document which requires a new style of governance. It is the Judiciary that serves as the guardian of that Constitution and has, in many cases, nullified actions of the executive arm of the Government that have offended the national values of transparency and accountability.

They have also nullified actions which contravene a citizen's right under Article 47 of the Constitution to an administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair. It has fined public officers who have disobeyed court orders and has awarded compensation to those whose fundamental rights and freedoms have been contravened.

The mood at the forum for review, therefore, should be that we have a good Constitution which needs to be strengthened.

DISOBEYING COURT ORDERS

One of the serious constitutional problems which the country is facing today is disobedience of court orders. As we engage in this dialogue, one of us, Miguna Miguna, is residing in Canada against his will because a court order has not been obeyed. Recently, the Ministry of Defence, in a court filing, stated that it has not satisfied decrees under which it is obliged to pay over shs4 billion to victims of violations of human rights!

In 2010, a Kenyan Court, quoting from Thomas Paine's pamphlet, Common sense, observed that ''In free countries, the law ought to be king; and there ought to be no
other".

In all constitutional democracies, including Kenya, the law is the King. We have failed greatly. This is not only recently but also over the last 40 years. When, in Arnacherry Limited -v- Attorney General [2014] eKLR, the High Court was awarding to the Petitioner sh850 Million for deprivation by the Government of its two farms which measured 914 acres, it observed that numerous orders the Court made in HCCC No. 690 of 1984 were not enforced. To use the Court's own words, "the orders were in fact blatantly and contemptuously disregarded by the police and the Provincial Administration."

Where court orders are not obeyed, anarchy is bound to come. Since 2010, the Independent Commissions like the National Police Service Commission which is established by Article 246 of the Constitution and Independent Electoral & Boundaries Commission which is established by Article 88 of the Constitution have not performed well at all.

Our problems do not come from the content of the Constitution only. Our own attitudes towards law, actions and omissions are in great need of change too. The review of the Constitution will, therefore, include establishing not only why the institutions were established but also why they have not performed as expected.

The Judiciary has raised the bar of democracy in the area of law-making. In a number of cases, it has declared null and void both national and county government legislation which has been made without public participation.
The review of the Constitution will consider why the other two arms of the government have not done as well.

The third thing is the proposal that the reforms must come up with proposals to be implemented by both the Government and the people through another referendum. By saying "We must then find the ways to address it,'' the President was emphasising the fact that we must go beyond the dialogue. He is to be understood to have been addressing all constitutional issues and not just the choice between the proportional system of representation and the winner-takes-all approach.

In addition, the President was alluding to the actual tried forums for the dialogue.

The fourth thing is the democratic character of the review which the President envisions. In the passage quoted above, he used the expression "We" twice. He no doubt was using the expression "We" as it is used in the Preamble to the 2010 Constitution. In it, the Kenyan people declared that "We, the people of Kenya" "enact and give this Constitution to ourselves and to our future generations."

The review of the Constitution will be democratically undertaken by the people.

The fifth thing is that the commencement of the dialogue was announced in Kisumu in the presence of the leaders of all main political parties – the President, Raila Odinga, William Ruto, Kalonzo Musyoka, Musalia Mudavadi and Moses Wetangula.

Even though the country's religious leaders, leaders of civil society, representatives of the business community, farmers and industrialists were absent, there is nothing unusual about this absence since the function was political.

PREFERENCES

However, it is imperative that the constitutional review be non-partisan. Raila Odinga and the Catholic bishops have expressed their preference for a parliamentary system of government. The President himself has dealt with options such as the proportional system of electing members of the legislatures. Mr Odinga is advocating for a return to the hybrid system which was recommended in the Bomas document. He is quoted as wanting the structure of the executive to be reformed. He argues that the Presidential system is not suitable in multi-ethnic societies.

This argument does not persuade many. Human nature is the same for all human beings. A good system of government must be based on acute understanding of human nature. It is clear that he would like the current American type of the Presidential system
to be replaced with the Prime Minister/Parliamentary system.

He is entitled to his views. So are the other Kenyans who have not pronounced themselves. It is at a referendum that that question will be settled. Hopefully, the government and the opposition will facilitate the process and not turn the review into another power contest. That contest should come after the reforms are agreed upon and implemented.

All the political leaders who attended the meeting in Kisumu should warn themselves of the potential danger to the country in using the constitutional review to realise their personal political ambitions

Dr Kuria is a Senior Counsel.