By LUIS FRANCESCHI Author Profile GADO has always amazed Kenya. He has the unusual capacity to grasp complex realities in just one silent drawing. Very few cartoonists can achieve what he does at ease, every day. GADO’s cartoon yesterday pictured a painful reality we are witnessing these days: The two most august houses fighting for power; self- destructive, unbalanced and unchecked power. The Constitution of Kenya is a complex, long and intricate document. But it had a spirit; a spirit that treasured integrity, sanity, change, development and accountability. Every single change the Constitution goes through should be impregnated by this spirit. Parliament should be asking itself: How can we enhance development? How can we remove any rotten apple from the public basket? How can we help counties in their devolution role? How can we advise them and help them to avoid the danger of becoming bureaucratic units… or development toll stations? Just dream for a moment of tomorrow’s Kenya. Let your imagination flow. Place yourself 50 years from now, in the year 2063. You are driving from JKIA, the biggest airport in Africa, to Westlands on an elevated bypass through Nairobi. KICC is now a museum and can hardly be spotted from among tall modern sky scrapers that have sprouted up all over the place. Suddenly you reach a beautiful place filled with modern buildings. It is not Westlands but Mukuru Kwa Njenga. Industrial area is an amazing business and industrial park. Madaraka and Nairobi West are now clean, airy and their roads are tarmacked. Uhuru Park is clean and lit. There you can see the statue of a woman of character, who died many years ago. She was called Wangari Maathai. The traffic lights are respected by cops, motorists and pedestrians. After all, there are none on the elevated bypass, but underneath. Westlands is now part of the CBD. After Westlands, roads are spacious and well tarmacked. Pedestrians do not need to do hiking or rock climbing on non- existent sidewalks because there are properly built ones; there are also a reasonable number of crossing bridges. You then reach somewhere that looks like the Muthaiga of old, but it is neater, more populated and it has life. It is called Gachie. How could this happen? Then, it is explained to you that these developments are not the result of good MPs. Everyone knows MPs are legislators in Nairobi. They represent us but they do not build anything for us. We don’t expect them to. That’s what Governors are for. Governors have been for fifty years rallying for a rational use of local funds: local public hospitals are modern and clean, schools are neat, investments and entrepreneurship have changed the way we do things. Suddenly, you wake up from your dream and you are in the today’s Nairobi. The challenge is: How to make the dream come true? Well, the Constitution was a first step. However, it is important to understand that this document will need to go through certain adjustments as always happens with such lengthy constitutions… but the spirit must remain. The Harmonized Draft published on 17 November 2009 by the Committee of Experts represented a clear step forward. The subsequent version of this draft, known as the Revised Harmonised Draft was essentially a different document. And this is the one we voted in. There are three key areas that define the theoretical essence of a Constitution. These are: the bill of rights, the system of governance and the way of relating with other nations. These three elements define which type of constitution we are adopting as a country. The first draft was founded on a different system of governance with greater parliamentary controls, a more limited bill of rights, and a dualist system for domestication of international agreements. Instead, the promulgated Constitution was presidential, extremely wide in its bill of rights, and adopted an essentially monist approach to domestication of international treaties. Such a dramatic change leads us to conclude that, from a constitutional law point of view, the Harmonized Draft was a different document from the Constitution Kenyans voted in the referendum of 4 August 2010. In the rush to change the system from parliamentary to presidential, many wide and ample powers were ambiguously left in the hands of the National Assembly. What did we end up with? A presidential system held hostage by an amorphous parliament with unusual powers. Why unusual? We have a house with very restricted work (senators) whose members represent a huge chunk of the population, and a house with scary ample powers which represents very small units or constituencies. This has created a crisis of identity, where the MPs, although they should really be called MNAs (Members of the National Assembly), have gone a little rogue and are not finding their feet. The MNAs (or MPs as we still call them) should focus on development. Let the country move forward and improve the quality of legislation being passed. If they go to a referendum to abolish the Senate I have no doubt they will be disappointed. The National Assembly may be the one being abolished. It is larger, more expensive, represents smaller units and has too many powers. After all, the senators represent a whole county; counties have governors to push for development. Counties have assemblies to make laws and bring people’s concerns forward. Where do MPs fall in this devolution chain? They may be redundant. So they better stay put and behave.
Posted on: Mon, 02 Dec 2013 00:38:45 +0000
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