Don’t trash the Naivasha deal

By OKIYA OMTATAH OKOITI
Published February 6, 2010

I was elated when the Parliamentary Select Committee (PSC), on constitution review meeting in Naivasha settled for the pure presidential system, which separates and diffuses power across strong institutions, and between politicians and professionals in a nationally stabilising way. The system can give us new perspectives for building our democratic institutions without the risk of either fragmentation or disintegration.

Nevertheless, when I looked through the PSC draft, I felt cheated because the key institutions that make the pure presidential system function in the service of the common good were either missing or not properly constituted. Many other Kenyans who have interrogated the draft have also been disappointed by the deliberate political mischief behind the document’s technical shoddiness.

Our Members of Parliament (MPs), seem to have set out to hoodwink us, thinking that once they fulfilled our desperate desire for a political agreement to move the process forward, they could safely sneak provisions that favour them into the draft. And so consensus it was. But the harmony was informed not by Kenya’s common good but by the vile dictates of self-preservation that secure the interests of the political elite at the expense of the country at large.

But those calling on us to reject the PSC’s work in toto, based on specific technical defaults in their draft, are using the wrong yardstick. The value of the Naivasha outcome is political not technical, and should be assessed politically. The MPs were brought in to deliver a political solution not a technical one and, politically, they scored highly by agreeing on the system of government, on devolution, and on representation. And that has given us the enabling environment we must seize to move the process on, free from political intrigue.

Since the review law required them to paint using the broad brush of politics, whatever they arrogantly painted using the fine brush reserved for the Committee of Experts (CoE), is null and void. The MPs had no mandate to mess about as liberally as they did with the revised Harmonised Draft.

Fortunately, being the principle organ of review, the CoE has both the power and the duty to overrule the PSC’s excesses and save the day for Kenyans. The CoE should move with conviction and courage against vested interests. They should eliminate whatever self-serving clauses the MPs inserted into the document, and work to give us a sound document that will domesticate a fully functional pure presidential system with requisite institutional controls, checks and balances, among the three separate but equal arms of government.

Among others, they should enhance the way the two levels of devolution compliment each other to serve us optimally, and recommend an electoral system that will creatively use the bicameral Parliament to ensure fair geographic and demographic representation. They should also carefully weigh the costs of whatever they recommend vis-à-vis the limitations of our economy, and ensure a sound bill of rights and an independent Judiciary to uphold them.

The CoE should guard against a bloated Parliament by rejecting anomalies like the creation of more constituencies and many seats for all manner of nominated MPs; the creation of backdoor cabinet positions by elevating chairs of parliamentary committees to cabinet ministers; the dangerous use of unbridled affirmative action with no time limits that legitimises reverse discrimination; and the elevating of the lower house, the National Assembly (where they belong), into the upper house and degrading the Senate without regard to political theory and standard practice.

The prestigious US Senate is modelled on the ancient Roman Senate or Council of Elders, and people under 30 years cannot be members. The framers of the American Constitution created a bicameral Parliament to ensure both the states (read one kilometre one vote) and the people (read one man one vote) were equally represented, and they acted as an internal check on each other, with the approval of both chambers being necessary for the passage of legislation.

Our Senate too should be superior to and more deliberative than the National Assembly. It should be a very sober house that gives the second and professional view to ensure all laws serve the national interest. Preferably the Senators should serve longer terms than MPs, allowing for a more collegial and less partisan atmosphere than the National Assembly. Like in the USA, the Senate should have several exclusive powers not granted to the National Assembly, including consenting to treaties and confirmation of state appointments.

Being a more prestigious body than the National Assembly, the threshold for being a senator, including the allowed lower age limit, must be higher than that of the National Assembly. There should be no considerations of affirmative action in the Senate, and the Deputy President should be a member and its chair to create the critical link between the Legislature and the Presidency.

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