Thursday, July 26, 2012



IEBC Chiefs Isaak Hassan and James Oswago at a Diaspora meeting in the USA
Turkana women in North Rift Valley on polling day in 2007

By Jerry Okungu
Nairobi, Kenya
July 25, 2012

August 27 2010 was indeed a historic moment in Kenya. The elusive constitution that the reformists had sought, fought and even died for was finally there carried aloft by President Mwai Kibaki at Uhuru Park.

To witness the occasion, the whole world descended on Nairobi. International media and African leaders mingled freely. Uhuru Park was packed to capacity.

Braving the chilly morning weather, dignitaries who didn’t get there on time had no place to sit. Footages on TV networks spotted retired presidents, world leaders and even judges just standing in the crowd since state protocol had run out of seats!
As President Kibaki and Prime Minister Raila Odinga cheered; as ordinary Kenyans went wild cheering the new born baby, something seemed to be amiss. There was one unwelcome guest in the crowd. Somebody had cheekily invited Omar El Bashir an indicted international criminal to the party!

As the euphoria died down and Kenyans went back to their daily routine, what they didn’t anticipate was that implementing the same constitution would prove to be a real challenge.

Now almost two years later, so many bills that were meant to be passed to facilitate numerous sections of the constitution are yet to be tabled in parliament. Police reforms are in limbo. Conservatives are busy trying to derail reforms in the provincial administration. If anything they are fighting tooth and nail to retain the old colonial relic- the provincial security network.

This intransigence has been the bone of contention between the Executive and the Judiciary with ordinary Kenyans taking the Executive on in several court battles using our newly empowered judiciary.

In a span of one month, the courts have nullified three Executive appointments not to mention ordering the arrest of Omar El Bashir should he set foot on Kenyan soil again.

Kenyans are painfully realizing that the new Judiciary headed by Dr. Willy Mutunga is not laughing with anybody. It would appear like he has decided that the law must remain the law and justice must truly remain blind.

First, President Mwai Kibaki suddenly one day appointed 47 county commissioners that had not even been created by parliament, oblivious to the fact that such positions did not exist in the constitution. More serious was the fact that he failed to consult his Prime Minister as the law required. Worst of all he forgot that the new constitution was very sensitive to gender, regional and ethnic balance. On these grounds, the court granted ordinary Kenyans their prayer and nullified the appointments.

A few weeks after appointing counting commissioners, the President waded into yet another controversy that raged in the National Hospital Insurance Board. What started as an internal disagreement among board members over the provision of medical cover for civil servants and teachers escalated beyond the Ministry of Medical Services. Before Kenyans realized what was afoot, the Office of the President had already taken over, sacked the entire NHIF Board together with the Chief Executive and appointed a new lot.

The next thing we knew; the doctors’ body went to court to challenge the President’s authority to sack the old board and appoint a new one.

In another ruling this week, the courts granted the doctors their prayer. Once more, the Executive lost.

As the week progressed, another court in Mombasa dealt the Executive another blow. At stake was the unilateral directive by the late Internal Security Minister, George Saitoti to ban the Mombasa Republican Council- a separatist movement that is agitating for a separate state. The minister’s decree followed explicit warnings from both the President and Prime Minister that the Coast would always remain a part of Kenya. It was this decree that the Mombasa Republican Council challenged in court.
When the court sat this week to give its verdict, it awarded the MRC its request. The court declared the presidential decree unconstitutional. The Executive losing three cases in a week was a bit too much for the once all powerful, all knowing center of authority. It would appear like the new constitution that the President promulgated just two years ago has turned to haunt the very presidency.

However, the biggest challenge the constitution has posed to the coalition government is when to hold the next elections. Without a new constitution, the President would have had the powers to prorogue parliament and have elections in December 2012 as Kenyans have done since 1969. However the new constitution clearly stated that beginning 2012, Kenya would hold elections in August every five years. However, vested interests connived and moved the date to December 17 2012 then moved it again to March 4 2013 citing an ambiguous court ruling; very much to the chagrin of many Kenyans tired of endless politicking.

Now, out of the blues, some politicians are plotting to have elections in August 2013, a move that will extend the life of this parliament by a good eight months with a possible three extra months should there be a presidential rerun.

It is this latest move that has sent jitters all over the country with some presidential candidates warning the coalition government principals that if they unnecessarily extend their term in office, they should be prepared for serious public revolt. Is this what they really want for Kenya?
We say here that Kenyans are tired of this dysfunctional coalition. It is time they elected a government of their choice that can implement the constitution on time.