The triumphalist arrogance and righteousness of the presumed “Yes” camp is misplaced. It is most irritating for anybody to think that by merely chanting “Yes” they become more patriotic than those opposed to the Proposed Constitution of Kenya (PCK). Those in the  “No” camp could well turn out to be the real patriots. History teaches that society depends on people of deep conviction and strong conscience standing up for what is right. It’s unacceptable to do a good thing the wrong way.

And it is not just that President Mwai Kibaki, Prime Minister Raila Odinga and “Yes” cabinet ministers are abusing their privileged positions, using state resources and threats to advance their “Yes” campaign while the “No” side is left to its own devices. Listening to their misplaced chest thumbing, as they traverse the country drumming up support for the PCK, using all manner of negative adjectives to derogate those on the “No” side as unpatriotic anti-reformers and do-no-gooder hypocrites, I am left wondering whether the said “Yes” camp have misconstrued the referendum to be a witchhunt.

A witch execution in any society is like a morality play. In it, the community as a whole rises up in righteous indignation against an attack on its perceived integrity, and destroys the evil element in its midst.

The referendum is not about good and bad guys. It is about democratic choice and, hence, unacceptable to think that we can use such undemocratic means to midwife a democratic dispensation. The constitution is about current and future citizens of Kenya; it’s not about President Kibaki, Premier Odinga, or the cabinet. Nobody is boss or subordinate. We are in this as private and equal citizens.

This is not a government project. The government’s role is limited to facilitating both sides in the process as an honest broker. If there is reason for one side to use public resources to campaign, the same resources must be availed to the other side in the name of levelling the playing field. That includes public resources spent on the President’s and the PM’s VIP travel as they traverse the country in pursuit of “Yes” votes. The costs of their expensive campaign trips should be converted into cash and offered to the “No” side.

It is not prudent for the Committee of Experts (CoE) to be in charge of civic education. The CoE will not conduct civic education; they will simply join the “Yes” campaign to ensure their work is not rejected. Only an independent entity like the Interim Independent Electoral Commission of Kenya can midwife an objective critique of the PCK.

The Kenya Broadcasting Corporation and private media should cover both sides equally and objectively. Everything necessary must be done to facilitate a free and fair contest that will ensure the universal validity of the results.

The simple yes-no referendum required to ratify the PCK is a tool of massive fraud. Whereas the process of amending the constitution’s ‘super clauses’ (such as the bill of rights, presidential term limits, judiciary, parliament, among others) should involve a referendum to protect them, their special status should not be hidden from the voter at the ballot box. It is fraudulent to bury them in a document, creating the misleading impression that all clauses are equal and then, after using a simple yes-no referendum to ratify all of them together, they morph into monsters. This is grave where the said clauses are also contentious as is the case today. Ideally, at the very least, the contentious ‘super clauses’ should be isolated and approved individually in a multiple question referendum so the people know what they are getting into.

A non-divisive referendum is not only possible but necessary if the constitution making process is to remain people- driven. In a people-driven process, the litmus test is the way the elites facilitate the people to exercise direct democracy and make critical decisions where their representatives and/or hired experts hit a deadlock, as they have done with contentious issues.

The people have a democratic duty and capacity to break such deadlock. And, having failed, the elite must facilitate us to sort out the contentious issues. This is not by opening up the PCK for elite amendments before or after the referendum. It’s by amending the Constitution of Kenya Review Act 2008, so the people can vote on both the PCK and an addendum containing questions to decide contentious issues. That’s the only viable way around vested elite interests threatening to deny us the new democratic constitution we crave.

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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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Broadly, experts advise that a constitution is best read and understood in three broad parts. The first part is the nature of the State, or the values and aspirations of the people upon which the state is founded. Second, there are the structures that are put in place to give form to the State on the basis of the people’s values and aspirations. Third and finally, the structures must discharge the functions of State in accordance with the people’s values and aspirations.

Right from the preamble the draft constitution is faithful to this very basic construct. So debate on any issue must be holistic to the extent that it addresses the nature, the structure, and the functions of the State.

The various contentious issues become less contentious when this approach is followed. For example, opposing property and inheritance rights for women on cultural grounds does not wash with the democratic principle of the equality of all citizens. And those who have argued against the inclusion of the Kadhi’s courts in the new constitution do not make very convincing arguments when they appeal to the principle of separation of the State and religion. From the preamble, which acknowledges “the supremacy of the Almighty God of all creation,” it is very explicit that the Kenyan State proposed in the draft is not atheist; it is simply neutral in religious matters not hostile to them.

The purpose of Article 10 on State and religion is for the State to be neutral in its dealings with religions. By submitting to the supremacy of God, the constitution automatically leaves no room for discrediting religion in favour of atheism as a source of public values. The State cannot be hostile to religious expression in public. For example, it is not against the constitutional separation of State and religion for a religious leader to offer prayers in public, including during State functions.

And it will not be against the constitution if religious doctrines and needs determine the working week and religious holidays are marked as public holidays. Hence, weekends will facilitate Christian worship by falling on Saturday and Sunday, but unfortunately not on Friday as the minority Muslims would love it to be. Christmas and Easter will be automatic public holidays, and the same will also apply to major Muslim holidays like Idi ul Fitir.

But, generally, for historical reasons associated with our colonial history under a Christian Britain, this interface between the State and religion will favour Christians unfairly. Muslims are therefore justified to argue that asking for the Kadhis courts to be included in the new constitution within a setting where the State is largely accommodative of Christian culture, is not asking for too much.

However, the argument that the courts are historical and can therefore not be removed is unacceptable given that one of the reasons we are making a new constitution is to completely create a new polity. Nothing that is in the current constitution is sacrosanct and beyond interrogation in the process to the new.

The argument by those opposed to the courts that they are a superfluous inclusion in the current constitution merits some attention. The Kadhi’s courts seem to duplicate the functions of the secular courts when under Family Law they have jurisdiction over Mohammedan marriage, divorce and succession of the laws of Kenya. But the Kadhi is not just a judicial officer; he is also a religious leader with distinct religious duties, including announcing the sighting of the moon and associated Islamic holidays. In this, it is difficult to justify paying Kadhis from the public coffers and not do the same for other religious leaders of say minorities like Sikhs, Hindus, animists or even the majority Christians.

But most important is the contention within certain circles that the Kadhis courts infringe the principle of equality between men and women, which is a key pillar of the democracy we crave. If it is true that Muslims, like my Catholics, don’t allow women clergy and, therefore, will not allow a woman to be a Kadhi (please correct me if I am wrong), then I do not see how a constitution that is supposed to be the foundation for a new democratic Kenya can create the Kadhis courts, or any other institution/office, that of necessity excludes women on whatever grounds. That would go against the very purpose of craving a democratic Kenya.

And so because they are discriminatory against women, Kadhis courts do not belong to the constitution of the Republic of Kenya.

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The failure of the 2009 United Nations Climate Change Conference in Copenhagen and, before it, the Kyoto Protocol, to decisively deal with human activities that are threatening planet earth makes it clear that it will take much more than stoking our fears of the consequences of climate change to get the desired results.

In spite of all the scientific evidence that we are self-destructing, we refuse to cut the senseless emission of greenhouse gases to save the planet. It is like no hellish scenario can make us change course to avoid our catastrophic appointment with destiny.

Ruled by the ruthless politics and economics of our hierarchical, patriarchal society whose rat race emphasises consumption, competition, expansion and domination, we ignore even the grimiest doomsday warnings around us. Fooled by humanity’s mistaken belief that we are hierarchically placed above, and even outside, of all creation, which exists solely to serve us by limitlessly enduring our abuse, we care nothing for the consequences of our reckless greedy exploitation of natural resources.

We see not the rapid disappearance of many animal and plant species. We see not the melting glaciers and erratic but violent global weather patterns. We see not the mass poverty, the erratic weather, the famines, the ceaseless wars, and the many other tragedies that are directly linked to our unnecessary negative activities. We see not the current chaotic and foreboding state of the planet.

When scientists confront us with the grim facts we look the other way as though the climate deadline we face has been set, not by Mother Nature’s precise and ruthless laws, but by fellow loafers whom we will bribe in the nick of time to spare the planet.

This has led some theologians to argue that the dying planet earth is a symptom of a much deeper malaise, of how we wrongly perceive and understand ourselves in relation to nature. They argue that our planet is doomed unless we fundamentally review our perception of reality and relate to nature in the right way, understanding humanity not as privileged master but as part of the total natural ecology.

These scholars oppose the concept of a discernable hierarchy in favour of humanity in the universe, and use the word ecology intentionally. Unlike the word ‘environment’, which means that which surrounds us, presuming we are at the centre, more important than these surroundings, the term ‘ecology’, from the Greek oikos, meaning ‘household’, makes us the householders of the planet. This underscores the fact that everything in nature is fundamentally interconnected and interdependent.

Such a holistic appreciation of creation, where all is interconnected and interdependent, contrasts sharply with the current materialistic worldview in which everything is understood as human-centred, with humanity being above and ‘outside’ nature as the pinnacle of creation, with everything else having an economic use value for us.

In his book, “The Powers That Be: Theology for a New Millennium”,  Walter Wink writes, “only by confronting the spirituality of an institution and its physical manifestations can the total structure be transformed. Any attempt to transform a social system without addressing both its spirituality and its outer forms is doomed to failure. Materialism knows nothing of an inner dimension, and so is blind to its effects.”

The current global vision of reality, where we value nature by what is immediately materially useful, is largely a spin-off of the world’s dominant Judeo-Christian-Islamic-Newtonian belief systems. Unlike other religions and forms of spirituality that have a deep reverence for the spirit dwelling in and energising everything, where all contain a spark of the divine, the religious traditions of the three monolithic Abrahamic religions (Judaism, Christianity, and Islam) are characterised by a supernatural theism. God is completely transcendent, outside creation, with all power at the top of the pyramid where corrupt mankind resides, claiming to be the general manager of the universe, because he is made in the image and likeness of the deity.

Just like the Abrahamic creation story, the theory of evolution implies a value judgment, where ‘lower’ organisms progress to higher ones, for example, humans are better than apes, creating a hierarchical superstructure with power and entitlement issuing from the top and trickling downwards, to justify greed, patriarchy, racism and imperialism.

Yet this mental construct of hierarchy doesn’t exist in nature; we put it there. Otherwise, viruses wouldn’t kill us. But they do because humanity is part of the earth which is a single living system, with self-regulating ability to provide the constant and optimum conditions for the survival of life. Hence, to save the planet, our consciousness of who we are must rapidly shift from one characterised by an entitlement to unlimited consumption to that of holistic life-sustaining habits.

This calls for re-visioning the dominant theological framings of God that construct God in our own image, complete with our human limitations and then, to justify our excesses in nature, claim we are created in the warped image of that totally human God to lord it over nature.

We must change our lifestyles to relate to nature in a new way, to live by the values of God’s reign of love which Jesus announced, understanding humanity as part of the total natural environment. That way we will not just cure (i.e., stop climate change) but heal (i.e., restore God’s plan for) creation.

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Shortly after 21 others and I were arrested on December 24, 2009, Mr. Anthony Kibuchi, the burly new Nairobi Provincial Police Officer (PPO), swaggered into our cell at Central Police Station in the company of Mr. Richard Mugwai, the Central OCPD. Mr. Kibuchi was visibly enraged that we had dared ignore his unlawful orders purporting to ban our peaceful demonstrations, and gone ahead to demonstrate after we complied with the law by notifying the police as required.

Having earned two presidential commendations, Elder of the Burning Spear (EBS) and Order of the Golden Warrior (OGW), Mr. Kibuchi must consider himself a hardworking policeman who has pleased his political masters. And as the Nairobi PPO, he seems to understand just how much unconstitutional power our dysfunctional system that thrives on the impunity of the powerful has put at his disposal, making him an absolute master outside the law, and not the universal servant of the people that he, as a Kenyan policeman, is supposed to be under the law. Hence, he was not going to take lightly the challenge of a bunch of nondescript individuals determined to disobey his whimsical orders so that they could enjoy their constitutional rights as provided for by Kenyan law.

Mr. Kibuchi singled me out and confronted me with questions meant to drive home the point that his letter to us banning the demo, which he had proudly signed off with the initials EBS and OGW in bold after his name, was supreme to the Constitution of Kenya that guarantees all citizens, including lowly ones like us, the rights we were exercising. Frustrated that I was ignoring his prattle, by keeping quiet as the law allows me to when under arrest, he snatched my
Father Christmas hat off my head and threw it hard onto the floor, then smacked me severally with his metal-tipped swagger stick as he snorted out a death threat, saying that he was going to eliminate me soon.

He then ordered one of the detainees, who was holding a pocket bible, to read Romans 13:1-7. Like an incarnate despot arrogantly displaying total disregard of the setting, character, contents, and arrangement of St. Paul’s Epistle to the Romans, Mr Kibuchi proceeded to brutally injure scripture by giving us a secular sermon that tried to insert into the text the idea that it was Christian duty to submit unconditionally into the bondage of government, and that civil disobedience is never allowed for believers.

At the end of his tortuous summon in the police cell, Mr. Kibuchi seemed to be saying that rogue policemen are sent by God to enforce the doctrine of unlimited and unconditional submission to government. And that he could not escape from that messianic responsibility.

In the hands of the ungodly, Romans 13:1-7 is probably the most devastating thing to the uninformed Christian. The famous words, “The powers that be are ordained of God” (Romans 13:1), are a favourite of despots. Throughout history, oppressors have used the text as a club to beat Christians into unconditional submission by unequivocally interpreting it as a command by God for unlimited submission to the governments of men, since all governments are from God and must, therefore, be obeyed.

That complete perversion in the treatment of scripture, that scandalous misuse of a religious text for unconditional subjugation under the authorities in the sense of power politics, is a barefaced falsification of holy writ.

St. Paul is addressing the need for Christians to be law-abiding citizens under a good government. The presupposition of Romans 13:1-7 is naturally that the secular government should obey and sanction the moral law of love. It doesn’t
teach that one should be subject to any authorities whatsoever, even when they do evil. On the contrary, Romans 13 limits the power and reach of civil authority.

In Romans 13:3-4, St. Paul explains the central purpose of a good government: to uphold a stable, beneficial social order, and to punish individuals who engage in evil acts. The welfare of the people is the only legitimate object
which governments and rulers are at liberty to pursue. Like the great prophets, the apostles including St. Paul himself, and Christian martyrs throughout church history who refused to submit to laws and prohibitions that went against their faith, because they understood that human authority is limited, believers are to only submit to those authorities that fit Paul’s description of praising good and punishing evil. Whenever governments don’t do that, then disobedience
becomes a Christian duty.

Further, in Romans 13:5, St. Paul makes it clear that our submission to civil authority must be predicated on conscience not on fear of retaliation. Meaning, our obedience to civil authority is a matter of conscience. We must think and reason for ourselves regarding the justness and rightness of governmental action. Obedience is not automatic or robotic. It is a result of both rational deliberation and moral approbation.

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As more than 10 million destitute Kenyans struggle to stay alive, fighting off starvation because of a recent severe drought caused largely by the massive destruction of forests across our country, it is unfathomable that anybody should be talking of any kind of payout to reward the very thugs responsible for the destruction of one of our main water towers, the Mau Forest.

That’s not to say that we should not, on purely humanitarian but very strong grounds, go out of our way to gracefully indemnify (not compensate!) those genuinely made destitute by the evictions. The small landowners who were conned into buying their parcels of land, or the squatters who were lured into the forest to provide a cover for the looters, should be given a soft landing. Nevertheless, any public money spent by the State on such a mission of mercy must ultimately be fully recovered from the super rich who hatched, implemented, and were the main beneficiaries of the Mau outrage.

Our Members of Parliament (MPs) are to blame for the two iniquitous Kenyan laws allowing the fat rats to demand compensation. Because successive post-independence parliaments failed to audit and modernize our laws, an iniquitous colonial law is still in our statutes to protect land grabbers. Under the guise of the sanctity of first title, but against public ethics, the powerful in government abuse their offices to irregularly allocate and register public land not available to privatization like gazetted forests, schools and other public utilities, and road reserves, then appeal to this outrageous law.

Then recently, because of their criminal mindsets and at huge public expense, MPs in the 10th Parliament cut shameful deals across the false ODM/PNU divide in shameful tradeoffs to save each others’ skins in the wake of mega scandals. They criminally conspired and passed a law that obliges the State to recover the Mau Forest land strictly in line with the provisions of the Land Acquisition Act, meaning grabbers must by law be compensated!

The Mau tragedy is a grand plunder of public resources, where individuals abused power to privatize their huge profits and socialize their devastating costs. Then President Moi led his henchmen on a looting spree. They cut down centuries old natural trees and sold them for billions of shillings. They used part of the money to build a tea factory, and make other expansive developments on the massive chunks of public land they had grabbed and privatised.

How much did it cost the public for the use of military personnel, trucks and other public resources to cut down and transport the huge logs to timber factories? What was the damage to our roads for transporting the inordinately heavy cargo? What are the social, political and economic costs to the country and region of the degraded Mau environment?

It’s a recipe for disaster to obey iniquitous laws. If we observe the laws and the Mau criminals laugh all the way to the bank, having made even more money selling our land and assets back to us, won’t their example be a total negation of the war on corruption?

It doesn’t follow that just because a rogue Parliament passed an iniquitous law then the Kenyan public is compelled to pay the crooks. That will set a dangerous precedent where criminals who steal from the public are rewarded instead of being severely punished. Parliament’s decision is NOT irrevocable! As a matter of national urgency, Premier Raila Odinga and President Mwai Kibaki should recall Parliament and have the MPs cure the anomaly by amending that law to remove the requirement to compensate those who own land in the Mau.

Ideally, those Mau titles should be nullified and used as evidence to prosecute those in whose names they were first issued.

Titles do not confer ownership; they only recognize it. Hence, under no circumstances can an immoral and illegal acquisition be made good by a mere piece of paper issued by whomever. Even the so-called sanctity of first title can no longer be used sanctify fraud. We live in a moral universe and modern Kenyan masses will not submit to the law of the jungle.

When the commands of justice and the demands of the law are in direct conflict, when the law is in conflict with natural justice, society has a moral obligation to disobey it and, by so doing, be held accountable to a superior duty. To obey bad or unconscionable laws is to commit crimes against justice. When legal requirement is opposed to a people’s ethical mandate it is worse than anarchy.

Anarchy may be bad, but despotism is worse (Locke). If we face an iniquitous law, then we must disobey, and risk anarchy, in order to resist the tendency toward the greater evil of despotism. If the Government obeys Parliament’s iniquitous law and rewards thieves that will put us on a slippery slope toward despotism, and it will bring us to the bottom in no time. Only disobeying such a law will have the beneficial and stabilizing effect of nudging our society closer to our shared vision of justice.

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An issue that is of utmost importance but one that has received scant or no attention from media commentaries on the Harmonised Draft Constitution is that of our astronomically high public debts, which to service annually gobble up an average of 25 percent of the national budget.

Over the decades, runaway public debts have impoverished our country. The high cost of servicing them has taken critically scarce money away from development projects and vital services such as our struggling healthcare and education sectors. This has depressed our economic growth and jeopardized poverty reduction programs, leading to the current instability associated with primitive competition for scarce and diminishing resources.

Clearly, if the new order is to be democratic it must also ensure mass prosperity because democracy cannot coexist with poverty. It must root out obvious and avoidable causes of our underdevelopment and its attendant mass poverty, including corruption, the general waste of resources, and the slavery of debt.

To avoid the slavery of debt, there is need for a robust regulatory framework for public borrowing and public debt management. Mechanisms to protect the country from runaway public debt must be enshrined in the Constitution and in other laws that accord several institutions of Government different mandates in the acquisition, management and utilization of borrowed funds.

Whereas, there is no express demand in Article 103 of the current Constitution (which deals with public borrowing) that the government of the day should be accountable to Kenyans for the debts it incurs, refreshingly, Articles 253(2) and 255(4) of the Harmonised Draft Constitution expressly detail proposed limits to government borrowing. Clearly, in the proposed new order, all future public debts will have to be approved by Parliament.

But that alone is inadequate. The new order must free us from the burden of repaying existing odious debts, which some estimates put at more than 60 percent of our total debt burden. Because the current Constitution allows the government to borrow secretively and liberally without involving Parliament and, by extension, the people, a lot of the debts we have paid and are still paying today were regime debts corruptly contracted through Anglo-leasing type deals taken out, not to benefit the people of Kenya, but individual powerbrokers or the regime of the day.

The regime debts go back to the colonial era and include the money the colonial government borrowed to fight the Mau Mau and terrorise ordinary Kenyans. For example, it is outrageous that Kenyans have been repaying and continue to repay the debts that were incurred so that citizens in the Mt Kenya region could be terrorised and killed. Instead of providing the people of Nyeri with social amenities such as piped water, the post-independence governments have been using some of our very limited taxes to repay debts that were incurred so that, day and night, from 1952 to 1956, British troops and the Royal Air Force’s Lincoln aircraft could respectively terrorise villages in Nyeri and bomb Mau Mau forest hideouts.

Kenyans have repaid and continue to heavily repay odious debts incurred by the colonial, Kenyatta, Moi and Kibaki administrations. This must come to an end in the new order. Debts that were contracted by a regime to benefit itself or its powerbrokers, and not the people, are regime debts to be paid back by the regime owners. They are not sovereign debts that belong to the public and which Kenyans have to repay. Those debts belong to the colonial, Kenyatta, Moi and Kibaki administrations respectively and their powerbrokers who benefited from them.

Important as it is, the draft new Constitution must go beyond just demanding that in the new order Parliament will have to approve government borrowing. The draft should ensure that none of the regime debts of old find their way into the new order. In its transitional provisions, the draft should demand that all regime debts should be separated from sovereign debts so that the people of Kenya only pay back what was legitimately borrowed to benefit them.

The current public debt register that stands at more than one trillion shillings needs to be published and forensically audited as part of the transition mechanism to the democratic dispensation. We must know who and what we really owe. We must know how the borrowed money was used. We must carry out a forensic audit of the public debt register to isolate genuine sovereign debts which we will proceed to repay, from odious ones which we will repudiate under international instruments governing such debts, so that rogue lenders and borrowers can settle their regime debts away from us.

Under the same mechanisms we must also be able to recover from individual beneficiaries and regime powerbrokers all the public money that has to date been used to settle these odious debts.

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Criticisms of the excessive concentration of power in the Kenyan Executive helped to place constitutional and institutional reforms on the national agenda. And because the chief executive is called ‘President,’ the debate about the relative merits and demerits of presidential and parliamentary systems of government is not objective. Wrongly assuming that the rogue system we have had since 1964 is presidential, many Kenyans, including accomplished law scholar Prof. Yash Pal Ghai, who is basically defending his Bomas thesis, are embracing parliamentary government as the ideal natural alternative essential for consolidating our democracy.

For proposing a ceremonial head of state, these Kenyans are praising the Harmonised Draft Constitution for dismantling what in local parlance is called an ‘imperial presidency’. Without a doubt, our failed state status is a direct consequence of the unaccountable system of governance that Mzee Jomo Kenyatta imposed on us when he declared himself president in 1964. Nevertheless, since he merged the office of the Prime Minister (not of the president) with that of the governor to abrogate himself the powers of an absolute monarch, Kenyatta did not create an imperial presidency – itself a conceptual impossibility.

There is absolutely no way the presidential system, with its clear and stable constitutional design, and dependency on the will of the people, can be imperial. Being about the people’s not the ruler’s sovereignty, and because he or she must be directly elected by the people, and is held accountable by an independent legislature, the chief executive in a presidential system is the negation in toto of imposing monarchical fiat.

When we compare structural differences between the presidential and the parliamentary systems, we see that Kenyatta created an imperial premiership. Whereas a real President must be elected directly and independently of the legislature, and assumes executive power outside the house in a dual mandate system, Prime Ministers Kenyatta and Moi were never directly elected for 15 and 14 years respectively. They assumed and retained power in our single mandate parliamentary system by virtue of owning/dominating the ruling party KANU. They were MPs and could not form professional cabinets independent of the legislature, meaning there was no separation of powers between the executive and the legislature, as required in the presidential system.

Ruling parties exist only in parliamentary systems; presidential systems have majority parties. Whenever a political party is elected, like in South Africa, then, irrespective of what you call him, the chief executive who emerges out of that process is a Prime Minister. Hence, though called presidents, Nelson Mandela and Thabo Mbeki were Prime Ministers. President Jacob Zuma is also a Prime Minister because he was not directly elected.

The title ‘President’ is one of the most misused in politics, even being applied to military despots such as Idi Amin, who had no popular mandate. When Kenyatta exploited the usual weak institutional controls, checks and balances of the parliamentary system, which allow rule by the mob, to christen himself President, he continued presiding over a parliamentary system as the Prime Minister for another 14 years. Moi never became President in his 24 years in power. And, both technically and practically, Kibaki is an imperial Prime Minister. To insist he is a President is the same as arguing that if we called him Nabongo, he would automatically become the King of Wanga.

Since independence in 1963 until the 1992 multiparty elections, the top seat was clinched by dominating the KANU mob. The ruling party’s wish was national policy. We were fully a parliamentary system. Even the outlawing of independent candidates and multiple parties are constructs possible only in rogue parliamentary systems. Such machinations are anathema to a presidential system where people must directly elect individuals not parties.

The multiparty era ushered in a hybrid parliamentary system (not hybrid presidential). Though the direct election of the chief executive is presidential, the institutional framework is wholly parliamentary. The parties are dominant, the legislature and the executive remain fused, and the conduct of legislative business is in every sense parliamentary. And, whereas legislators don’t lose their seats in a presidential system when they impeach and remove the President, a ‘vote of no confidence’ in Premier Kibaki will result in a general election.

Hence, it is foolhardy to emotionally reject the presidential system yet it is the current parliamentary system with its imperial premiership that has destroyed us. Given our multiethnic nature, we must soberly, and of necessity, consider the (American) presidential system. It alone separates and diffuses power across strong institutions and between politicians and professionals in a nationally stabilising way. The system can provide us new perspectives for building our democratic institutions without the risk of either fragmentation or disintegration that loom large in the Harmonised Draft Constitution.

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Far from being a soothing statement, it was like adding salt to our festering wound to waste our very limited taxes on paid up press advertorials in which, referring to himself largely in the third person, Attorney General Sitswila Amos Wako defended his tenure by projecting himself as a reformer, and imputed malice on the part of the US Government for revoking his visa.

Presenting what is really a colourless list of achievements after two decades in absolute power, Mr Wako falsely claims credit for what others suffered personal pain, and even death, to achieve, like instituting multiparty democracy. Mr Wako misleads us further that his office is not an issue under Agenda 4 yet envisaged judicial reforms will encompass his office which is a key component of our justice establishment.

Illeism, the act of referring to oneself in the third person, has a dark history associated with absolute monarchs, dictators, and supreme egoists. It is a sign of arrogance, and it betrays a delusion of superiority. It’s okay when a mother says to her baby, ‘Mama will do X or whatever’, but it’s very weird in adult conversation.

Illeism is a symptom of narcissism, the personality trait of misplaced self-esteem. The self-absorption includes character traits concerned with self-image or ego, denoting vanity, conceit, egotism or simple selfishness that betrays elitism or an indifference to the plight of others. It takes an illeist to exhibit a smiling Mr Wako’s usual condescending attitude and reckless disregard of public opinion.

More like an obedient general lobbing grenades to decimate reformers and protect the illicit status quo than a reputed human rights attorney doing all in his power to expand the democratic space, Mr Wako has single-handedly blocked Kenyans from using the courts to expand democratic space and constitutionalism.

Even where matters are actionable and would advance the causes of democracy and justice through public interest (or impact) litigations, reformers are reluctant to go to the courts. And it is not because of the many biased judges who pack our courts to gate keep for the system; it is AG Wako’s knack for abusing the nolle prosequi that largely stops citizens from instituting private prosecutions, thus blocking reforms.

Mr Wako wields the nolle prosequi like a sword against society not as the shield it is supposed to be. He gleefully overreaches himself to protect the imperial court through executive acquittals. He hijacks and terminates public interest litigations to provide and guarantee instant and unqualified freedom for socially or politically prominent criminals.

The recent beneficiaries of Wako’s executive acquittals include: aristocrat Tom Cholmondley accused of murdering Kenya Wildlife Service Warden Simon ole Sisina; First Lady Lucy Kibaki whom KTN cameraman Clifford Derrick had sued for assault and damaging his camera; then Vice President George Saitoti; Solicitor General Wanjuki Muchemi who was facing criminal charges from Mr Apollo Mboya, a former State counsel who used to be his personal assistant; a former Trust Bank Chief Ajay Shah who was facing a KSh14 million theft case; Mr Madat Ali Chatur and two Air Force soldiers charged with evading tax amounting to millions of shillings; and Mr Maina Njenga the proscribed Mungiki sect leader acquitted when he was about to spill the beans in court.

Mr Wako did the unimaginable when he literally granted himself immunity from prosecution. He put himself practically above the law when he violated a fundamental rule of natural justice by terminating, in his own favour, a private prosecution against him by the Law Society of Kenya over the Anglo Leasing scandal.

For small fry like me, the AG has brutally abused the nolle prosequi to deny us fair trials whenever we have had strong cases and wanted them referred to the High Court for interpretation of constitutional issues. He terminated my 2008 case where I was charged for chaining myself at the Police Headquarters to protest police killing of unarmed protesters. He also dropped criminal libel charges against journalist Kamau Ngotho a day after he was allowed to challenge them in the High Court.

Mr Wako has been a key promoter of unconstitutional governance. For 18 years he has trampled upon the rights of the vulnerable, downtrodden and the helpless in society to benefit himself, friends, and the powerful.

Far from being a catalyst for change who claims to have enhanced democracy, rule of law, human rights, transparency and accountability, Mr Wako has been an insurmountable obstacle to reforms in many ways.

For me, it is the abuse of the nolle prosequi that epitomises his failure in toto as the defender of public interest in our criminal justice system. His rogue terminations of criminal proceedings to protect criminal elite in total disregard of the duty of his office to the public interest have fundamentally undermined the credibility of our criminal justice system. And since he has security of tenure he must bear full personal responsibility by vacating office immediately.

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By OKIYA OMTATAH OKOITI
Published October 18, 2009

A recently released study showing teenage sex explosion in Kenya has seen many pundits pointing fingers of blame at our religious institutions. In particular, the Catholic Church and Muslims have come under attack for their opposition to the introduction of “sex education” in schools.

The Catholic Church is not silent on the vexed question of sex education, and is not to blame for the current permissiveness in society. On the contrary, the Church teaches that within their own families, young people should be aptly and seasonably instructed about the dignity, duty, and expression of married love, so that sex education cannot be anything else but an education in chastity imparted by parents.

Whereas the secular world argues that unless there is breathtaking transformation in human nature, we should accept the fact that religious values will not prevent millions of people who profess to adhere to those values from deviating, that it’s not realistic to teach chastity as a viable option. There are cogent reasons for the teachings of the Catholic Church that the quick-fix mentality of condom-centred sex education (read sex promotion) in schools will do more harm than good.

The evidence from around the world shows a high rise in teen sexual permissiveness where secular classroom sex education that puts God at the margin of life and regards the birth of a child as a threat is adopted.

One of the most interesting, but unfortunately missed, findings of a February 2007 survey commissioned by Oakland Media Services ,which was the first to expose Kenya’s teenage sexual promiscuity is that, 30 per cent of the girls surveyed were still virgins at between 18 and 19 years of age. Secondly, 31 per cent discussed their sexual lives with their families. This correlation of virginity and family nurture seems to confirm what the Catholic Church has been saying all along – that the best place to teach responsible sex education is in the family.

By emphasising on parental rights and responsibilities, the Church is insisting that sex education is a basic right and duty that parents need to carry out in the home. There is no substitute for a personal dialogue of trust and openness between parents and their children, that is, individual formation within the family circle, which respects not only their stages of development but also the children as individuals.

Sex education is a very delicate and sensitive subject and parents must find time to be with their children, who are their most important task as a gift and a commitment, and take time to talk with them, more and more as the years pass, listening carefully to their children, making the effort to understand them and to recognize the fragment of truth that may be present in some forms of rebellion.

Such individual formation within the family means that education in chastity is indistinguishable from religious and moral formation in other virtues such as temperance, fortitude, and prudence. Chastity cannot exist as a virtue without the capacity to renounce self, to make sacrifices, and to wait. Chastity is the spiritual power which frees love from selfishness and aggression.

Hence, being a matter of inculcating modesty, purity, chastity, and morality, a matter of teaching the sixth and ninth commandments, sex education cannot be confined to, or chiefly characterized by, the imparting of mere “information”, however true, to children at impressionable ages, by teachers whose moral standing is neither known nor guaranteed. That’s why it is best done privately by parents, “in the heart of the family”, taking into strict account the individual stage of development of each child being educated.

But in the modern largely neo-pagan society, where opinions tend to be founded more on hype than on analysis of facts, the Catholic Church’s traditional strictures against secular classroom sex instruction has been dismissed as an impractical, unrealistic, head-in-the-sand stance that skirts reality.

But much more important than whether or not we need sex education is the most important question: What kind of sex education are we talking about? Most people have not bothered to look into this question. They behave as if they already know what the lessons will entail. To oppose the whole concept marks one as a troglodyte.

A careful examination of modern classroom sex education that deliberately “lets it all hang out,” leaving nothing to the imagination in the name of openness and honesty, reveals programs at all not designed to warn youngsters away from permissive and harmful sex experiences. Rather, arguing that times have changed, they aim at breaking down traditional morality and sexual “inhibitions” in favour of encouraging sexual experience – “safe sex” through the use of modern prophylactic and contraceptive devices. They promote today’s sexual revolution – the idea of sex without consequences and “alternative lifestyles” like homosexuality and lesbianism. They are not the solution to today’s sexual permissiveness, but a significant part of the problem.

Secular sex education is yet one more of modern society’s flawed and ersatz solutions. In the past, even when the family did not provide specific sexual education, the general culture was permeated by respect for fundamental values and hence served to protect and maintain them. The decline of traditional models has left children deprived of consistent and positive guidance, while parents find themselves unprepared to provide adequate answers.

The Church has programmes and publications such as The Truth and Meaning of Human Sexuality published by the Pontifical Council for the Family (on November 21, 1995), that can equip parents for this noble task so that each child, being a unique unrepeatable person, can receive individualized formation. Since parents know, understand, and love each of their children in their uniqueness, they are in the best position to decide what the appropriate time is for providing a variety of information, according to their children’s physical and spiritual growth. No one should take this capacity for discernment away from conscientious parents.

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I am not excited by news that the Independent Criminal Court’s Prosecutor Moreno- Ocampo is finally set to jet into Nairobi to start his work of holding the sponsors of the 2007/2008 post-election violence criminally liable for their heinous crimes.

My lack of excitement is not because Moreno-Ocampo faces major hurdles in his work. These obstacles are real and might put paid to his efforts before he as much as begins any real work to bring the culprits to book. Ocampo has only three ways of intervening in the Kenyan mess. The direct route is for the Government of Kenya to willingly invite him to do so. But all indications are that, despite talk to the contrary by both President Mwai Kibaki and Premier Raila Odinga that they are determined to see the perpetrators of the crimes prosecuted at The Hague, all indications are that they will not allow this to happen given that they themselves and their key political and business allies are key suspects.

The Second option open to Ocampo is to appeal to the ICC judges to allow him to directly indict the suspects. Here, Ocampo will have the huge task of proving that Kenya’s law and order instruments have failed to the extent that the ICC needs to intervene directly. The only easy thing in this case is that having ratified the Rome Statute that established the ICC, and gone further to domesticate it in 2008, the ICC has jurisdiction over Kenya. The hurdle is that Attorney General Amos Wako will line up a battery of good lawyers, with political backing from influential nations and corporations, to argue the case that Kenya is not a failed state.

The third option would be to get the UN General Assembly to refer the Kenyan matter to the ICC like it did with the Sudan situation that saw several top politicians and even President Hassan Omar al Bashir indicted for crimes against humanity. The major hurdle here is that Libya and other African countries that recently resolved to protect Bashir will gang up with the likes of China to lead an onslaught that will defeat such a development. What in essence this means is that the key perpetrators of the anarchy that snowballed into the post-election violence that officially killed 1,133 Kenyans, maimed thousands, and consumed the livelihoods of hundreds of thousands of poor Kenyans will never be known, let alone be brought to book.

But assuming that somehow Ocampo succeeds to get started, my main concern is that the ICC has absolutely no mechanism worth the name for protect witnesses with adverse evidence who might wish to come forward. The ICC only provides protection to witnesses who travel to The Hague to testify. Those who don’t, and give their evidence in the country where crimes were committed, are left either to the State’s witness protection mechanisms or to their own devices of protection. It is not enough for supporters of the ICC process to say that where necessary the evidence will be taken in camera to “protect the person, property or reputation of any witness.”

The ICC can only achieve it mandate of punishing the sponsors of the PEV by receiving credible information form witnesses. But to encourage the public to give evidence the ICC must first provide tangible protection and benefits to those who come forward.

At the very onset, the ICC must recognise the need for legislative measures to protect those who disclose information relating to criminal/irregular conduct in society. The ICC should not move as if it is of the view that it is not apposite to first deal with the question of witness protection as their most critical issue.

Many people wishing to come forward with evidence will rightly fear for their safety in Kenya should they speak. Given our recently launched wishy-washy witness protection laws that are devoid of any infrastructure that can realistically protect one from even common criminals, let alone from high octane criminal political operatives, would-be witness may only speak out in the event they are assured of relocation to a third country, far away from the reach of the criminal Kenyan State.

Ideally, the ICC should not begin working before it works on mechanisms that will ensure the rights of and benefits for witnesses. The said rights and benefits should include the following: personal security and protection; relocation; change of identity; assistance from government in obtaining means of livelihood; just compensation; and protection against reprisals, including prejudicial and discriminatory treatment in the workplace.

This would reduce the risks to witness, and diminish the possibility of losing crucial leads due to the unwillingness of informers to come out in the open, for fear of retaliation. To safeguard the policy from abuse, the same mechanisms would also harshly penalise informers who disclose false information.

The ICC must create conditions in which witnesses will feel safe and encouraged to come forward. It must be appreciated that witnesses in hostile cases are very susceptible to adverse factors: If witnesses perceive a serious risk to themselves, they are far less likely to step foreword. Equally important, if they perceive that little or nothing will come of their evidence, they will balance effect against risk and decide not to step forward. Hence, witnesses need to be convinced that they are safe and that the evidence they provide will be taken seriously, and that the investigations and prosecutions will be quick and effective. Nobody wants to stick out their neck only to see nothing come of it.

Around the world, witness protection is protection of a threatened witness, before, during and after a trial, usually by police. Most witness protection legislation and infrastructure focuses on protecting witnesses against reprisals by those adversely affected by the evidence they give.

Witness protection is usually required in trials where law enforcement sees a risk for witnesses to be intimidated by colleagues or defendants. In the USA, the Federal Witness Security Program is intended for crucial witnesses whose prospective testimony puts them in immediate danger. Such witnesses are usually given new identities and moved around the many states that make up the United States of America, where they anonymously blend into a new city where they most likely won’t be recognized. The United States has more than 300 million people and thousands of cities in which to hide a protected witness in total secrecy. However, in a small country like Kenya relocation to another country may be the ideal.

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There is no faulting the Catholic Church’s position that abstinence outside of marriage and fidelity within marriage, as well as the avoidance of intravenous drug abuse, are the only morally correct and medically sure ways to prevent the spread of HIV/AIDS. That’s until you encounter the reality of the pandemic in marriage as exposed by the horrifying statistics being released in reports by governments, NGOs, and even by private researchers.

HIV/AIDS is ravaging married couples. Under normal marital circumstances abstinence is out of the question and fidelity won’t work. This calls for new thinking about the condom.

Nevertheless, the Catholic Church is right to criticise the well funded “safe sex” campaign as a thinly veiled invitation to promiscuity that throws all caution to the wind by portraying condoms as a 100 percent effective and sufficient means of HIV/AIDS prevention. That can no longer be the case in the face of the recent revelation that some of the condoms on the market, in particular the “Hot” brand, leak and offered virtually no protection against either sexually transmitted disease or pregnancy.

Further, many users, including youth, are not correctly and completely informed of the risks involved. They are made to think that condoms provide total protection yet scientific evidence has it that, when properly used, condoms are largely only up to 80-90 percent effective against the sexual transmission of HIV/AIDS. Hence, governments should require cautionary labels for condoms, as they do in the case of cigarettes, stating that the protection condoms provide is not total, and that the 10-20 percent risk levels are indeed significant for an illness that still has no cure.

My concern here is whether the Church’s opposition to condoms in the management of HIV/AIDS within heterosexual marriage is because, conceptually, condom use is morally wrong, or is it because condoms are not a 100 percent medically sure way of battling the pandemic?

This debate seems to be going nowhere because Humanae Vitae, the 1968 encyclical of Pope Paul VI, and subsequent church teachings, treat condoms purely as contraceptives and not prophylactics against a deadly disease. In ruling out all forms of artificial contraception, Humanae Vitae reaffirms the church’s age-old teachings that, since God created sexual intercourse to be both unitive and procreative, the two dimensions of the conjugal act should never be separated. Every conjugal act must be open to the possibility of conception.

But for years now, some Catholic scholars have argued that by explicitly permitting and encouraging ‘periodic continence’, popularly known as Natural Family Planning (NFP), the Catholic Church pierces its own teaching that it is always gravely sinful for spouses to manipulate, pervert or interfere with the conjugal act in such a way as to impede the possibility of procreation. In NFP, the natural infertile period of the wife’s menstrual cycle (or the natural period of infertility caused by breastfeeding) is identified and exclusively used for having conjugal relations, in circumstances where a married couple has sufficiently serious reasons for wanting to avoid conception.

Since the earliest times, the Church has denounced the use of onanism or coitus interruptus, now popularly called ‘withdrawal’ (practiced by Onan in Gen.38:6-10), of which condoms and similar barrier methods are enhanced latter versions. To date, the Church forbids artificial birth control methods and orgasmic acts outside of full marital intercourse, while she accepts not having sex at all (abstinence).

The Church allows having sex at an infertile time in a wife’s life when it is technically not possible to conceive (such as during pregnancy or after menopause), since the infertile condition is natural, not artificial. The Church also acknowledges a potential benefit of spacing children through NFP. Couples are warned, however, against using NFP for selfish, immoral, or insincere reasons.

Doesn’t NFP constitute an intentional artificial intervention to prevent the conjugal act from being open to the possibility of conception? Doesn’t it amount to intentionally separating the unitive and procreative dimensions of the act? Does it matter if artificial pregnancy barriers are physical (here, strictly condoms not abortifacients) or non-physical (such as manipulating a wife’s menstrual cycle)?

Even though conjugal acts carried out precisely in the infertile period do not, by the very nature of the case, have any natural procreative potential to begin with, hence, they cannot be “deprived” or “robbed” of that potential, the intention of NFP is to avoid offspring. Technically, it is like wearing a condom on your mind, on your intentions. Remember Christ’s warning that if you lust after a woman you commit adultery in your heart.

Intentionality it is a critical element of moral decision-making. In fact, it is the DNA of moral action. In order to arrive at a morally acceptable decision it is important to discern the moral intention of the act. If an action is morally bad in itself, it cannot really serve a good end, even though it may on the surface appear to do so. You cannot use bad means for a good end any more than you can build a good house out of bad materials. Since a bad end is one that we are not morally justified in seeking, we are not morally justified in taking any steps whatsoever toward its accomplishment. Hence, no means can be justified – that is, made morally right – by a bad end.

If NFP, whose intention and outcome are clearly to separate the unitive and reproductive dimensions of the conjugal act, is acceptable where a married couple has sufficiently serious reasons for wanting to avoid the conception (even if it is to space children), then it means that it is not inherently evil to separate the unitive and reproductive aspects of the conjugal act. If the desire is to prevent abuse, then it should not be clouded in purposeful incoherence. This calls for the immediate review of the apparent conceptual contradiction on the specific issue in the Church’s core teaching on human sex and sexuality as contained in Humanae Vitae so that the Church does not stay stuck between a disease and doctrine.

Since the Church has endorsed NFP it cannot logically impose a blanket ban on condoms, including on their use as a prophylactic in the management of HIV/AIDS in married couples, simply because they also prevent conception. As for not being 100 percent safe, let the concerned infected couples, provided they have properly formed consciences, lovingly and carefully decide to take the risk the way we all do when we ride in cars and aeroplanes that occasionally fail and destroy lives.

The beauty in all this is that such a position would not be the standard by which we simply measure the expediency of the means, but its moral justification. The Church would not be allowing condomisation as a lesser evil; it would simply be working for a good end. And if the end is really good, and if the means really serves the end and does not defeat it in any way, then there can be nothing wrong with the means. It is justified by the end just as it justifies the end, and we are justified in using it. We should not allow our judgements to be clouded by our feelings.

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