Although the government has
come in for the most severe vilification for its insistence that any resolution
to the current crisis be concluded within the framework of the Constitution of
Kenya, all indications are that the government is justified in its reluctance.
The government's position is
informed by the current Constitution, the rule of law, and by the conventions
and political culture in America.
The Kenyan Constitution on
its own Amendment
Section 47 of the Kenyan
Constitution is explicit in its statement that that the Constitution can only
be changed by a Constitutional amendment passed by parliament. Tellingly, the
constitution does not empower foreign mediators to change it by insisting,
without insisting, or even insisting from the corners of their mouths, that
changes be done urgently and after a certain fashion.
In any case, it is debatable
whether the current parliament can amend the constitution because as currently
constituted, it is not representative of the national population. Section 42
(3) states that "all constituencies shall contain as nearly equal numbers of
inhabitants" and mandates the Commission (Electoral Commission of Kenya) to
take account of "density of population and the need to ensure adequate
representation" and "population trends," "geographical features" and "the
boundaries of existing administrative areas."
It further demands that the
Commission keeps abreast of changes in population, and that it amend
constituency boundaries every eight years to reflect such trends. This has not
been done and there exists huge variances in the representation of the Kenyan
people, with most high-density areas being grossly underrepresented in
parliament. Consequently, a constitutional amendment in parliament will in all
likelihood not be representative of the will of the people; unless those making
up membership of the house are drawn from constituencies that are
representative of the population spread. At such an important amendment, it is
important that one MP not represent 15,000 voters while another represent
150,000.
It is also instructive that
the Kenyan Constitution does not speak of its own retirement or death. This is
not to say that we cannot write a new constitution; all constitutions contain a
constitutionalithic element, to use a
Derridan term, meaning an inherent poison that makes their replacement by newer
constitutions possible. But this process takes time, money, and effort. It is
not an overnight whimsical occurrence but one demanding utmost reflection and
the consideration of alternatives and consequences. Constitutions are not
written for two years, or for three years, and being the supreme law of the
land a higher more exacting standard is necessary for their enactment than an
angry and divided parliament in a crisis can provide. In any case, such a
rewriting is not even in parliament's remit given that parliaments are themselves
not constitutional conventions.
The Road to Liberal
Democracy
Given these facts, and our
obviously demanding crisis what can we do, is there a way out? We start from
the premise that the ODM did not win the election. What they have done is to
claim that Kibaki and the PNU rigged the election. The ODM has claimed it has
evidence to that effect. A number of observers have also made similar claims.
Interestingly, they have all refused to go to court where their evidence can be
assessed dispassionately using established legal-rational methods.
Instead, the ODM has preferred violence as the most effective mode of
protest and expression.
Once thriving cities like
Kisumu and Eldoret have been razed, looted and cleansed of ‘enemy' ethnicities to
impress upon the government the brutality of the ODM and its willingness, as
repeated over and over again by its leaders, to use violence as an instrument
of negotiation. The party's supporters have attacked innocent people in these
cities and the violence they have triggered has driven over 500,000 people from
their homes across the country.
This ODM inspired violence
has spawned a series of self-defence and revenge attacks that has been seized
upon against all reason by those who want to claim that both sides are culpable
for the violence. Such ones have also extended their argument into an outright accusation
of dictatorship and selective targeting of ODM supporters. Employing a
first-class propaganda machine that is creative and fast on the draw and
manipulative of the foreign media and governments, the ODM has effectively
elided the difference between the remarkable freedoms of Kibaki's first term
and the mayhem of the post-election period. The more you read the ODM
propaganda, the more last year's Kenya looks like a foreign country.
Co-opting the Opposition
in America
The answer to this question
is to be found in good old United State of America. After all, both the ODM and the PNU claim that they
want to steer the country down the path of liberal democracy. Both Kenyans and
Americans believe that liberal democracy in Kenya is possible and inevitable.
Well, we have been on this
road for some time now and the challenge is how to keep going without being
distracted by those who want to ambush us through violence. For a start, we
have a Presidential system, give or take a few innovations. The Kenyan
presidency is as powerful as the American presidency in terms of executive
authority. The American executive is so powerful that it is considered an
important source of American law. One of the claims that the ODM
has made it that it wants power. Unfortunately, power is not something that the
PNU can give to the ODM outside of the constitution and without reference to
Kenyan citizens in whose trust the PNU is exercising power.
As I have already stated, I
believe that the ODM presidential candidate genuinely lost the election. The
party's failure to petition against the PNU's win using civilized, established
means is statement of its latent admission of its loss. However, I admit
that with the ODM enjoying the support of a sizeable number of Kenyans, they
must be afforded a place in government.
They are already
participating in government as the Official Opposition. Beyond this, given our
current constitution, the PNU should make accommodations of magnanimity based
on precedents from the world's greatest liberal democracy - America - which Kenya considers a role model and aspires to emulate.
The practice in the US, whenever a need is felt to reach out to the
opposition, is to co-opt members of the opposition into the cabinet. This is
always done in an informal way. The US Constitution is not amended or overhauled
in any way, and certainly no external mediators are brought in, even when the
electoral outcome is disputed - such as in the 2000 election.
The practice started soon
after US independence when President George Washington
appointed James Monroe to the position of Minister to France (US ambassador to France, then a very important position given the role that France had played in the American war of liberation). Monroe was an anti-federalist, sometimes called the
"Anti-Administration Party" for their opposition to the presidency of George
Washington, particularly his aggressive fiscal policies. More recently,
President Jimmy Carter appointed Republican James Schlesinger Secretary of
Energy; Ronald Reagan appointed Democrats Jeane Kirkpatrick, Mike Mansfield,
and Edmund Muskie to important cabinet-level positions; George Bush Snr
appointed Democrats Griffin Bell and Robert Strauss to equally important
positions; President Bill Clinton appointed Republicans Chic Hecht, David
Gergen, Alan Greenspan, William Cohen, and Warren Rudman; and the incumbent
President Bush has appointed Democrats John Dilulio, Norman Mineta, Tony P.
Hall, Paul F. McHale, Jnr., Lanny Davis, and Diane Farrell to senior and
cabinet-level positions.
The guiding principle in the
appointment of these opposition politicians is simple - a fairly non-partisan
career. It is borne out of the realization that populating the cabinet with
hardliners from either party is a recipe for disaster as it deprives the nation
of the cross-party perspectives that ensure national acceptability and
compromise in the pursuit of such national objectives as would last beyond the
immediate goals of an administration.
Once appointed, the
appointees work hard to serve the American people, not as moles planted by
their political parties to sabotage the government in the hope that it will
fall and their party take over, but as diligent patriots looking to make a
difference.
Taken from an even more
immediate and practical angle, it should be clear that merely appointing
headliners would affect the work of Congress -the law-making body-
significantly. Hardliners are invested in their party more than they are
invested in their country. This is not to question their patriotism but merely
a comment on the nature of the beast. In making these appointments, the US President is never dictated to or led or suggested to
by the Opposition or by foreign interests. You could say the President acts out
of goodwill, not as a result of being arm-twisted.
Incorporating the Opposition
in Kenyan Government
Kenyans want a strong opposition
that is also patriotic; an opposition that will check the government without
sabotaging the work of governing. It must be clear to everyone now that to keep
an eye on government is not the same as to disrupt or undermine nation-building
efforts.
For instance, it is necessary
that corruption scandals are exposed and that their promoters are shamed in
public, arraigned in court and if found guilty suffer a ban from public office. But
this calls for a commitment to the rule of law - and rule of law, while
allowing fair comment and absolute privilege in parliament, also places a high
value on due diligence, so that representatives of the people need to do their
homework very well before using their privileged position in parliament to cast
aspersions against their fellow public servants. This means tabling documents
and evidence to support their claims.
It is important now that
Kenyans appreciate that parliament is itself a branch of government. Performance
within those walls is just as important as that of the executive. It is crucial
that we begin to pay particular attention to the quality and quantity of
contributions in parliament. Mere rhetoric has nothing to do with quality,
while it may elicit cheers from the public gallery and the particular MPs side,
if it does not deliver for Kenya it is tax-payer time and effort that has been wasted.
More important than having
every last MP in parliament angling for a place in the executive is the involvement
of as great a number of MPs as possible in the asking of the executive and in
holding it to account for policy judgements. What we must now consider one of
our top priorities is the strengthening of the research capabilities for
members of parliament so that they can hire qualified staff.
We also need to create
linkages between our training institutions and parliament so that people reading
law, government/public administration, journalism, public heath, education,
etc., can serve as interns to not just members of parliament but also to the
Clerk of the National Assembly. Part of the reason why young people feel so
detached from their government has to do with the fact they are not involved in
it, not in the way it is run now, nor in the future that is being created in
parliament and the ministries. It is a matter of the greatest urgency that
young people are recruited to assist parliamentarians, councillors and even
administrative officials.
But back to the question of
power-sharing arrangements. The sharing of the responsibilities of the
executive with the opposition along the American lines is already underway,
most clearly in the alliance with the ODM-K that has been executed without the
need for a change in the constitution. The ODM-K has joined the government and the
ODM, although unhappy, has not argued that this move was unconstitutional. I
see no need to change the constitution for the ODM, unless we can do the same
for ODM-K, Safina, NARC and the other 300 political parties. Or do we want them
to kill some people before can change the constitution for them? Simply put, the
ODM is not special. The only thing that distinguishes them is violence and the
threat of sabotaging the country if their demands are not met.
It appears to me that there
are many ways of accomplishing change. Many Kenyans are familiar with
co-operative societies, so I will give the analogy of a co-operative society.
Being a member of one such co-operative, I know these societies are full of
politics. If you are looking for change in the co-operative, you have several
options - you can follow the by-laws, take legal action, or you can walk in the
boardroom with a loaded gun. I am sure you can change a lot with such a hold
up. You could even get all the gathered board members to endorse any cheque for
you - in their own hand!
The way out
The threat of violence works
in strange ways, its wonders to perform. Assuming that the ODM is not
going to wear a balaclava and walk into the boardroom of government with a
shotgun, I propose that certain exceptions be made for them, as follows:
First, the president should allow the ODM to nominate their own people to
the government. If they want to nominate Raila Odinga, William Ole Ntimama, or William
Ruto, that is fine. Ministers appointed should be subject to some kind of
enforceable doctrine of collective responsibility to forestall the impunity
witnessed when some the ODM members were incorporated in the last government.
While they should not condone
illegalities, they should be supportive of the government in a functional, visible
way. They should also be subject to the performance contracts like everyone
else. Given that some cabinet positions have already been taken, the ODM
should be allowed to nominate CEOs and Chairmen for some state corporations,
subject to qualifications of said applicants. Once appointed, they should be
subject to the performance contracts already in place. The ODM has complained
of marginalization. Appointing CEOs is spreading the bread, distribution of resources,
and is in the national interest.
Third, the Office of the
Leader of Official Opposition should be strengthened and given more respect. It
should be at par with the President, Speaker and the Chief Justice in term of
respect accruing. This means more money for its work and access to the
President, the Speaker, the Attorney General and the Chief Justice. His ideas
should be incorporated in the Budget as much as is practically possible.
Fourth, members of parliament
should have more research assistants who should be employed by the national
assembly, ideally from the MPs district, but who should bring advanced research
and writing skills. We want contributions in parliament to be well informed and
supported with adequate evidence. These accommodations should be good until a
thorough constitutional review is undertaken. The PNU should be generous enough
to make these accommodations and the ODM on its part should be gracious enough
to accept. Let's face it, this is the most powerful Opposition Kenya has had in
its history. We should allow it to do its job as much as we should allow the
government to do its own. Their complimentarity can only bring much needed
progress.
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The other big question should have been: Who planned, financed and incited the ethnic killings and displacements of Kenyans fromt their legally owned farms?
The other inquiry should have been: Were the shooting of looters and goons in Kisumu necessary?
I don't know what Kofi is talking about if none of the obove issues are on the agenda. he should go home tonight. There are empty seats on the BA to Londone, from there he can connect to Geneva or whatever... for how long is his visa valid anyway? and while am still at it, is Dick Morrison still in Kenya?