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Constitution of Kenya Review Commission |
By Hon.Joseph Martin Shikuku, EBS
15-09-2001
Short History of the Kenya Constitution:
Before independence, Kenya was a colony of Britain and it was governed and received its orders from WHITE HALL in Westminster Abbey. Such orders from her Majesty's government were sent to the Governor of Kenya, who in turn passed it to the PCs, DCs, DOs and colonial African Chiefs. The Kenyan people were never consulted nor their approval sought.
As a result of the above, the armed struggle for independence ensued, and on 20tn October, 1952 Sir Eveline Barring declared a state of emergency. The said emergency ended in 1950. In 1962, the then governor with all the elected and specially elected members of the Legislative Council left for London to attend the Lancaster House constitutional talks and for the first time, agreed on a FRAMEWORK constitution.
In 1963, a regional or then known as Majimbo type of constitution was agreed upon by both parties and Kenya became independent on 12th December, 1963.
Why Majimbo Constitution?
Because both parties namely, KANU and KADU were opposed to being ruled or governed from Whitehall where all the power was centred and opted to govern themselves through a system that de-centralized the power from the center to the regional assemblies and to ensure equitable distribution of the country's resources.
The Review of the present Constitution:
All present here will agree that the present Constitution requires review because all powers are centralized and we all complain that there is too much power in one man's hands. I must however, point out that the said Constitution is not the one we came with from the Lancaster house because when Kenya became a republic on 12th December 1964, the Lancaster House Constitution was so much amended between 1965 and 1967. All the powers that had been decentralized were again centralized hence the present problem.
Why was Majimbo Constitution Scrapped?
The argument at that time was that if Majimbo Constitution was implemented, it will bring DISUNITY and TRIBALISM. This was not only untrue but deceitful. Today there is not a single informed man or woman unless he is a liar, hypocrite and a fool who can deny that there is no tribalism and disunity yet the Majimbo Constitution for all this years was not in operation. To elaborate, one only needs to look at the independence cabinet, appointment of Permanent Secretaries and other strategic arms of government; will realize that such appointments were based on tribalism.
Of course the present government is following the "Nyayos" of the previous government.
Why has unity and abolition of tribalism not been achieved?
It is because the leaders preached against tribalism when they actually practiced it. The leaders advocated for unity yet after 38 years of independence, we have not achieved it. There can only be one reason namely, they preached drinking of water while they themselves drank wine for actions speak louder than words.
What do we do to change the situation?
(a) Truth:
Time has come with the leaders of this country stopped being liars and hypocrites and embraced the truth for the TRUTH is GOD and GOD is the TRUTH. For it is written "seek ye the Truth and the truth shall set you free". For without truth there will be no justice, there will be no love and above all unity.
The future Constitution should be based on the 1963 independence Constitution because the said Constitution had checks and balances and all we need is to review that Constitution, amend parts that are no longer necessary and add parts that we feel will make it more workable. For instance, we cannot overlook the fact that Kenya is made up of 42 tribes and this must be included in the Constitution as a fact and must be accepted because it is the truth. The 42 tribes should be looked upon as equals, be they big or small and the bigger ones should not attempt to swallow the small ones by grabbling their land or properties. And whosever thinks that he can fool the Wananchi of Kenya, he will find out that he will be fooling himself.
Yes, there is the talk about the new generation. Is it not true that even at our higher learning institutions, groups of tribal affiliations like the Kikuyu Student Associations, Luhya, Luo Kamba etc are formed. We must accept this ethnicity and look at India where they have more tribes and borrow a leaf from them on how they manage their tribes and cultures yet they are they India is the greatest democracy in the world. Let us look at Britain where the Scotish, English, Irish and the well rich etc co-exist. Let us stop being hypocrites.
The Constitution of Kenya must include the following; truth should be our guiding light, and also to include the important saying 'In God we Trust'.
(b) Participation of Mwananchi in the Review of the Constitution:
For Mwananchi to fully participate in the review of the Constitution, he/she needs to be educated on the contents of 1963 Lancaster House Constitution and the present constitution so that he should be in the position to review the said Constitution. The question is "how do you review what you do not know ?
The only alternative would be the lawyers and other learned professors to review it which will render it not a people driven constitution, but that of the academics because they were not elected by the people.
In the Lancaster house Constitution discussion, we had political leaders who designed a suitable Constitution based on the gathered views from Wananchi and the lawyers then put these views in legal language.
(c) Appointment of the Cabinet and Public Officers
To curb the present tribalism in appointment all appointment must be approved by the Senate. There were only three lawyers, one for KANU and one for KADU then one from the colonial office. If one looks at the USA Constitution which has withstood the test of force, was made by the simple folks most of whom were farmers.
(d) What system of Governance do you want?
So far we have opted to adopt the Westminster type of parliamentary system where people elect one amongst them to represent them in parliament. Hence the spokesman of the people for a term of five years. But today, it appears having elected a member of parliament, there appears to be other leaders being equated to elected representatives in the name of spiritual leaders, women champions, youth leaders, lawyers, blind, dumb, NGOs etc.
It is my considered opinion that all these other than the elected representatives have a right to have their views taken into account. The spiritual leaders for example, have a right to air their views but such views can be channeled through their elected representatives for they also vote. Some applies to other named above. But it is up-to the people to decide on who should represent them.
(e) Dissolution of Parliament:
A clause must be included in the Kenya Constitution to amend that section that gives the power to the president to dissolve parliament even before the end of five year term. We should adopt the United States system whereby the Constitution shall provide a term of five years and parliament on the fifth year, in a certain month of that fifth year, elections be held.
(e) Discrimination:
No one should not be discriminated against because of ones sex, colour, size, religion, education, age but when one meets the required qualifications, one should be legible to stand and the people should be the deciding factor. Privileges should not be extended to anyone.
(f) Corruption:
No country in the world can prosper with corruption and being a serious subject, we must find a place in the Constitution whereby this serious disease can be taken care of. And all leaders from the councilor to the president must declare their wealth and also explain how they acquired such wealth before being elected or take up a public office.
(g) Election Expenditure:
This should be restricted by the Constitution as to how much one should spend on an election so as to give a chance to those with less finance to be elected and hold public office. Failure to do this, Kenyans will be governed by the rich whose wealth was looted from the public office and after ones term, declaration of wealth should be done again.
(i) What is expected for a leader?
(i) One must be morally upright
(ii) One must not have engaged in corruption, bribery and money laundering
(iii) Someone incapable of managing ones financial matters e.g. failure to pay or
meet financial commitments and is taken to court for failure to do so. (iv) Has not looted the wealth of the nation (v) One who was involved in murder (vi) A leader who is not a liar and hypocrite.
POINTS OF AGREEMENT BETWEEN KANU AND KADU:
(vii) Both parties were sick and tired of being governed by colonial government which was 4000 miles from Kenya namely, White Hall.
(viii) Kenya should be independent
(ix) Kenya would become a member of the Commonwealth
(x) After serious negotiations it was agreed that we have a Majimbo Constitution (federal government).
(xi) That power from the center to be transferred to the regions with all possible speed, the department and services which were still remaining in the center to be handed over in accordance with requirements of the FRAMEWORK CONSTITUTION agreed by both parties in 1962 (RF.P.561 1 p29).
(xii) Greater part of this transfer will be effected on December 1963 and the remainder will be completed by 1st January, 1964.
(xiii) The report of the conference together with the SECRETARY OF STATES statement, the test of Mr. Kenyatta's letters and full particulars of the constitutional changes were published as a white paper (Comd 2156 HMSO 1S6d) on 21st October, 1963.
(xiv) The above can be found in Kenya Independence Conference 1963.
(xv) The date of independence to be 12th December, 1963