Okiki Oderos OPEN LETTER TO RAILA AMOLLO ODINGA. RE: AT WHAT POINT SHOULD WE SET THE CONSTITUTION ASIDE? Dear Sir, As a law student, I always looked forward to the day when Kenya would get a new Constitution. My dissertation for my LLB Degree was titled, Constitutionalism In Post Independent Kenya. My supervisor was Prof. Tom Ojienda, LSK representative to the Judicial Service Commission. Senate Majority Leader, Dr. Kindiki Kithure was my Constitutional Law Lecturer. As well as the famous Mutakha Kangu. You are a hero, for championing the current constitutional paradigm. We Kenyans thank you for that. Ahsante Sana! Like all other Kenyans, I waited for Saba Saba with nothing less than bated breath. To be sincere, I was very apprehensive. I did not know whether it would be peaceful or not. As a former student leader, I know that crowds can be wild and uncontrollable. It was PEACE-FULL. It is with great interest that I downloaded todays Daily Nation, and read the 13 point Resolution, under the OKOA KENYA INITIATIVE. In particular, the proposal to have the UN SET UP A TEAM, to conduct a National Referendum. I find this proposal to be in contempt of the established constitutional order, which establishes the Independent Electoral and Boundaries Commission (IEBC) as the constitutional organ primarily tasked with carrying out referenda. This is in my view UNCONSTITUTIONAL, All sovereign power belongs to the people of Kenya and shall be exercised ONLY IN ACCORDANCE with this constitution - Article 1 (1). In your RIGHT OF REPLY to a journalist in todays daily, you made an interesting remark. Sir, you have today observed that, The constitutional rights we fought for are not empty statements in a dead document. They are real and intended to be exercised freely. Why do you desire to make article 88 of the Katiba an EMPTY STATEMENT? Article 88 (4) of our constitution reads thus, The Commission (IEBC) is responsible for conducting or supervising REFERENDA and ELECTIONS to any elective body or office established by this constitution.... Sir, why endeavor to make this article EMPTY? I am immediately reminded of the debates that preceded the enactment of the American constitution. Alexander Hamilton observes that, A fondness for power is implanted, in most men, and it is natural to abuse it when acquired Thomas Paine, American founding father observes thus, concerning the Government, Society in every state is a blessing, but a government, even in its best state is but a NECESSARY EVIL; in its worst state an intolerable one... What am I trying to say? Laws as well as governments are NECESSARY EVILS. They are meant to protect us from ABUSE OF POWER. In our constitution, Kenyans chose the system of governance we wanted, and the institutions and bodies we wanted, and how they would conduct business. Katiba, Kutuokoa! Nothing has changed! But if things have changed, as CORD alleges, then those changes should be addressed within the confines of the current constitution, which is very clear on the procedures to be followed. Why not simply follow the Katiba. Katiba ndio tiba! There is a procedure for disbanding any constitutional commission, as well as for removing any or all of its members. I humbly advise you as the leader of CORD, to follow these provisions. Let the rule of law be adhered to in all cases. Sir, you are the champion of this constitution! Be also a champion in adhering to its clear provisions. Hamilton therefore observes, Good constitutions are formed upon a comparison of the liberty of the individual with the strength of government: if the tone of either be too high, the other will be weakened too much. We have this balance, in the Katiba! I highly doubt whether we have reached the stage where we are ruled by men corrupted by the law, If citizens cannot trust that laws will be enforced in an evenhanded and honest fashion, they cannot be said to live under the rule of law. Instead, they live under the rule of men corrupted by law. We ought therefore to consistently uphold our Katiba. Sir, it is more than clear that CORD desires to have the IEBC disbanded. Let CORD follow the path set forth by the Katiba. Sir, it is not constitutional to conduct a REFERENDA or ELECTION other than as prescribed by the Katiba. Bertrand Russel therefore observes that, Government can easily exist without laws, but law cannot exist without government. We have both! A supreme law, and a constitution that methodically prescribes the method of governance. Sir, I am not in anyway intimating that that IEBC is guiltless, A countrys adhering to the rule of law does not mean that its citizens will not do bad things - James Inhofe. When its citizens err, they must be dealt with LAWFULLY, LEGALLY. John Locke therefore observes that, The end of law is not to abolish or restrain, but to PRESERVE AND ENLARGE FREEDOM. Tiffany Madison goes on to say, When the rule of law disappears, we are ruled by the whims of men. Sir, I am certain of this one fact, no sane Kenyan wants to be governed by the whims of ANY ONE MAN! Thomas Paine asks, But where says is the King of America?... He then goes on to answer those who ask, ...In America THE LAW IS KING! Sir, you assured Kenyans that if we wanted REAL CHANGE, we had to have a good constitution. We now have it! Finally I bring to the attention of all Kenyans, your wise words in Todays DAILY NATION, The Constitutional rights we fought for are not empty statements in a dead document. They are real and intended to be exercised freely - Raila Odinga, WE ARE IN TROUBLE AND WE OWE KENYA A DUTY OF MAKING IT BETTER THAN WE FOUND IT. Like you, and most Kenyans I have met and interacted with, I DREAM OF A BETTER KENYA. Katiba Ndio Tiba! Okiki Odero-Rege Senior Citizen - REPUBLIC KENYA.
Posted on: Tue, 08 Jul 2014 08:45:13 +0000