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Constitution of Kenya Review Commission |
By J B. OJwang Professor of Law & Dean Faculty of Law, University of Nairobi
15-09-2001
ABSTRACT
In establishing the governance framework for a country, a Constitution creates the vital public organs. Traditionally, these organs are: the Executive, the Legislature and the Judiciary - the first to carry the functions of policy and administration; the second to lay down, change or repeal the law; and the last one to be the adjudicator, where disputes arise in the process of implementation of the law. In some countries there may be additional organs of government, depending on the existing needs and priorities.
Kenya today has only the three basic organs of government, and this sets her apart from many countries, including neighboring Tanzania and Uganda. In both these countries the Constitution provides for an Ombudsman institution, to protect the citizen in their attempts to access and to make use of administrative services. Disputes and complaints invariably arise in this sphere because, whereas administrative assistance and support to be ordinary citizen is ever so important, bureaucrats generally assume for themselves informal privileges and Immunities that render them abusive or inaccessible, and the ordinary citizen becomes the victim. Such matters are not justiciable in the courts of law, and hence the citizen needs a constitutional protector outside the three basic organs of government.
The Executive in Kenya was of a dual character under the Independence Constitution - an aspect which favoured the functioning of checks-and-
balances in government. However, the constitutional changes of the 1960s took away this element and left a linear-structured Executive whose accountability was only after five-year intervals, to the voters themselves.
This process of constitutional change took away the pluralistic Parliamentary base which had provided for a two-chamber parliament, as well as for decentralized Regional Assemblies. The single-handed Executive acquired yet more power over the National Assembly, a constitutional development which over the years, became the greatest challenge to constitutionalism, given in particular the advent of the single party system which lasted from 1969 to 1992.
It is precisely this constriction in the political and constitutional space that evoked the clamours for constitutional change of the early 1990s. While significant constitutional and operational changes have since taken place to allow more room for pluralistic political activity, constitutional change has been of a patchwork kind, and thus a vibrant framework of political activity has yet to be created. This is the primary task of the Constitution of Kenya Review Commission.
As the Commission focuses its attention on the creation of a vibrant context for constitutionalism, it will need to be guided by the quest for constitutionalism, the rule of law, and the creation of larger space for lawful political activity.
The Commission will need to consider among other things, the creation of one or more things, the creation of one or more additional organs of government, and the Ombudsman institution is clearly a candidate in this regard.
The Commission will also need to consider the present interplays between the Executive and the Legislature, and to work towards a scenario in which genuine Parliamentary control of government can take place. In this regard, it will be necessary for the Commission to hear the voice of the people, on the question whether the single Parliamentary chamber is adequate or whether Kenya, should return to bicameralism.
If the people continue to accept parliamentary government, then it will be important to address the party system, since traditionally the effectiveness of Parliament, as a constitutional organ is dependent on the free play of political parties. In that event, guarantees for the effectiveness of political parties and even coalitions of parties would become necessary.
As regards the Judiciary, the Commission should consult with the people on the desirability for a Supreme Court, to be the ultimate adjudicator in all-
legal claims including the interpretation of the Constitution. The people should also give their opinion on the best ways of assuring competence and impartiality in the Judiciary. They should give an opinion on the role that Parliament can come to play in assuring the impartiality, dignity and integrity of the judges.