Saturday, November 26, 2011



By Jerry Okungu
Nairobi, Kenya
November 23, 2011

Finally Speaker Kenneth Marende allowed Mutula Kilonzo’ amorphous Amendment Bill in the house for debate. The Bill seeks to amend several clauses that not only  deal with the Election date as stipulated in the Constitution but also how to effect the 30% rule for equitable gender representation in the two houses of Parliament.

Though the controversial bill originated  from the Cabinet where all party leaders represented in parliament sit, this sudden rush to give Kenya its  First Amendment when the very constitution is yet to be implemented in totality  has been a cause for concern among back benchers, members of the public, political analysts and observers alike.

However, the zeal with which the Justice Minister is pushing this amendment with tacit support from the chairman of the Independent Elections and Boundaries Commission must be a cause for worry to those who fought day and night to have the constitution passed without amendments.

If indeed these amendments are necessary now, why didn’t the Justice Minister along with others of like mind point out the loopholes during the public debate which lasted several months? More importantly, what informed the Committee of Experts’ decision to fix the date in August every year? Were they not aware that our Financial Calendar is always in July and that the current Parliament’s term would expire in December 2012? What is so sacred about the July Financial year? What would be so wrong in cutting the current parliament’s life by a few months? Isn’t this a small prize to pay for democracy to take root in this country?

This amendment is beginning to give us dangerous signs and possible problems in the future. We are now beginning to realize that any time the Cabinet does not like an aspect of the Constitution, the Justice Minister will be compelled rush an amendment. Yet this is precisely what massacred the Lancaster Constitution so much that 40 years later, we were compelled to write a completely new constitution.

This amendment does not auger well for Kenya. We are beginning to see the Executive encroaching on matters that are purely parliamentary. That date was set so that the Executive would have no say in when elections are held. Yet if the amendment goes through, the Executive will have done just that; controlled the parliamentary calendar- at least for now.

I have not seen the bill however, I’m wondering if this amendment is specific to 2012elections or it will be a permanent feature since the 11th Parliament will also resist cutting short its life.

Before we voted for the constitution in August last year, we were repeatedly told that nobody had the power to alter, delete or remove even a coma from the sacred document. What has happed 14 months later? When MPs brought in 250 amendments before the referendum, all of them were defeated. Where will Justice Minister get the two thirds majority to pass this bill? Is he ready to buy MPs to get this thing passed?

At the time the Speaker was allowing this Bill for debate, a matter in court concerning the same had been mentioned in the Supreme Court that subsequently referred it to a lower court for hearing. Are we saying that Parliament has no respect for a matter that is already before the courts? Where is the separation of powers here?

By succumbing to pressure from the Executive, the Speaker of the National Assembly has surrendered his powers to the Executive. He should have waited to see how the courts would rule on the matter.

Saying that the courts’ role in this issue is merely to interpret the law is mischievous. This kind of statement is obviously misleading and unfortunate coming from those who are expected to know better. In my understanding, courts are there to go beyond mere interpretation of the law but to give rulings in a dispute and ensure the ruling is complied with for the sanity of the society. Were the courts to merely interpret the law then by the same token we would expect parliament to merely make laws and stop there!

If the majority of the back benchers are opposed to the amendment; if the majority of Kenyans want elections carried out in August 2012 as per the constitution why then should the Cabinet- just 42 Kenyans insist on changing that date? Does the Constitution of Kenya belong to the people of Kenya or does it belong to 42 cabinet ministers, the chairman of the IEBC and the Speaker of the National Assembly? Who is supreme here? The people of Kenya or the individuals employed by the people of Kenya? And what is the role of the Commission on the Implementation of the Constitution in this saga? Why is no one listening to them?

Isaak Hassan must remember that the new constitution was approved through a popular vote .Therefore there is nothing wrong in making a populist decision if that is what the owners of the constitution want.
Those who are incapable of respecting the constitution have no place in the present Kenya. Kenyans are tired of compromises and backroom deals.