Thursday, November 19, 2009



By Jerry Okungu
November 19, 2009

I cannot be persuaded that the only important constitutional issue in Kenya is the executive powers of the president or the prime minister. In the same vein, nobody can convince me that a duly elected popular leader must be the one to wield executive power just because Kenyans elected him. If that were the case, Hitler’s popular vote did not prevent him from carrying out genocide in his own country.

Let mainstream media give us a break. Allow us to debate this draft with sobriety.

Spare us the agony of poisoning our minds such that by the time we go to the polls, it will a PNU- ODM, Kibaki- Raila contest. We are past that. We fought a bitter war in 2005 and both sides lost. We repeated the same fight in 2007 and again, both sides lost. That is why we are in a coalition. Nobody won the elections. It is therefore pointless to incite the public or different ethnic communities to begin viewing the draft in terms of Raila or Kibaki.

This constitution is for Kenyans, we the people of Kenya. It is not for Raila Odinga or Mwai Kibaki. These two leaders may be our prime minister and president today but in ten years from today they will be history just as Moi is today. Moi scuttled the constitution process in November 2002 thinking that without it he would influence Kenya’s politics. Today, he is a spectator just like us.

In two years, Mwai Kibaki will be a former head of state. Ten years later at most, Raila will be a former head of state if he wins the 2012 presidency. It is therefore pointless to see this document in terms of the current leaders.

Let us zero in on aspects of the constitution that make sense to Kenyans such as the impact of a devolved government, two chambers of parliament, a recall clause for MPs and the right to education for Kenyan youth.

Let us see if anti-corruption can be entrenched into the constitution so that whoever defrauds public funds would know that he or she would be violating not just an act of parliament but the fundamental law of the land. Let us entrench a clause in the constitution and make it part of the oath by which all elected leaders will swear that they will not steal public funds and that they will set examples as good citizens by paying their taxes in full instead of hiding their incomes in sitting allowances.

The draft constitution under the Bill of Rights proclaims that every Kenyan child will be entitled to free and compulsory primary education. This is well and good however, it will be a travesty of justice if after 8 years of free primary education, some Kenyan children that are gifted but are either orphaned or from poor families are subjected to the humiliating process of begging from well wishers in order to continue with their education. Let the constitution clearly state that “Every Kenyan child will be entitled to free education up to the maximum that their academic ability can take them and that the state will guarantee them this right”.

On the cabinet composition, the draft has not gone far enough. And I will repeat it here for those that have not heard me in the past. 20 members of the cabinet for a tiny country like Kenya with a tiny economy like ours is extravagant and ill-conceived.

Let us just stop to think for awhile. Now that we are proposing a three tier government just like India and United States of America, we don’t need too many National Members of the Cabinet because a lot of development issues will be dealt with by regional and county governments.

In the USA, a country of 50 states and 300 million people, the Obama administration has less than 20 federal cabinet ministers (Secretaries of State). India, the largest democracy in the world with a population of 1.9 billion people only has 19 cabinet ministers. Now, if one compares our population and GDP to those of the USA and India, it defeats logic why we need 20 Cabinet ministers. In my opinion, 8 cabinet ministers, one from each Province would be the ideal situation in the next dispensation.

While on the cabinet formation, let us be candid about things. The reason why we have a dysfunctional government is because every Tom Dick and Harry who get elected to our Bunge expect to fly a flag back to his or her village. Those left out even in an unwieldy cabinet such as ours start whining and throwing brick bats left and right. The new constitution gives us a chance to permanently bar elected MPs from serving as ministers at the same time.

Let us select technocrats who have no allegiance to village constituencies to serve as our ministers. However, for those MPs that are nominated for consideration by Parliament must relinquish their seats as MPs once they are recruited into the cabinet. They must be subjected to the same process the Speaker goes through. It is the only way we will have true separation of powers with the possibility of having truly national leaders serving in our cabinet.

In the area of Press Freedom, it is good the constitution strives to embed these rights so that past situations where media houses have been raided for one reason or another do not recur. However, freedom of speech should never be allowed to extend to those that will abuse it by engaging in oral sex on our airwaves. The only way these pornographic broadcasters can be allowed to operate is to deny them free-to-air licenses. They have to be confined to subscriber based cable channels so that their clients can pay to watch. If they want free to air licenses they must play according to the rules of common decency just like in other open and democratic states. No freedom can be absolute.

On broadcast frequencies, the current multiple holders must appreciate that internationally, frequencies allotted to each country are regarded as national assets just like oil, minerals and other natural resources that must equitably be distributed among first, Kenya nationals before foreigners are considered. Therefore the rule of one frequency one broadcaster must apply so that diversity in thought and news dissemination is maximized. The current situation where one broadcaster can hoard up to 60 frequencies for speculation purposes must be disbarred in our constitution.

That is the way it is.