on the new constitution: wanjiku doesn’t care

The committee of experts charged with steering the process of giving Kenya a new constitution has come up with two contentious issues that they think should be ironed out before Kenyans can finally have  a new constitution – after over 20 years of waiting. The issues are:

1) whether to have a presidential, parliamentary or hybrid system  of government

2) whether the term of the current parliament should expire with the adoption of the new constitution.

To resolve these issues, the Attorney General, Amos Wako, wants Kenyans to submit their suggestions to his office. I say this is nonsense. The original idea to involve Wananchi in the writing of a new constitution was a mistake (I agreed with Moi, even back then as a high school kid) and any further involvement of “wanjiku” will remain an exercise in futility. Some of the best constitutions of the world – like the American one, for instance – were drafted by experts. Villagers in Siaya or Maragua do not care whether we have a presidential or parliamentary system. These are issues only in the heads of Kenya’s power-hungry ruling elite. All Wanjiku cares about is the number of sufurias in her kitchen. Period. Whatever system promises more sufurias she’ll be for it.

For full disclosure, I am not a fan of either PNU or ODM. President Kibaki is a living example of the excesses of an all powerful presidential system and a form of government lacking any separation of powers – the president and all members of his cabinet are also members of parliament. PNU wants to perpetuate such a system judging by what its talking heads are voicing.

That said, I think ODM’s call for a parliamentary system of government is also misguided. Kenya is a young democracy that needs stable government. Parliamentary systems, especially in fractious states like ours, are highly unstable. Look at Italy, Israel and Lebanon. They hold elections almost every few months and take forever to form governments. We need a stable and functional executive if we are going to accelerate Kenya’s economic development.

My two cents on this is that the solution lies in having a presidential system strengthened by a complete separation of powers. The president should be head of the executive and not a member of parliament. His cabinet ministers should also not be sitting members of parliament. Parliament should be independent. To acknowledge the ethnic realities of the country we need to have a two-tier legislature. The lower house should be composed of representatives from constituencies. The upper house should represent Kenya’s ethnic mix, with equal representatives from the major ethnic groups and regions.  The judiciary should be independent of the executive without any compromise whatsoever. Judges should have life tenure and have their pay regulated by an independent public servants remuneration commission.

And on the second point. 2012 is close enough. Let President Kibaki serve the rest of his term and go in peace.

the pros and cons of having a local tribunal

Kenya’s Justice Minister, Mutula Kilonzo, has made it clear that the government does not want the architects of Kenya’s post-election killings to be tried in the Hague. He instead wants to create a local tribunal. Previous attempts to establish a local tribunal were defeated in the Kenyan parliament.

A local tribunal is both symbolic and practical. It is symbolic in the sense that it reaffirms Kenya’s sovereignty in the eyes of the international community. It would show that we are neither Somalia nor Chad (although we might be getting there if things go unchecked) and can take care of our own mess. It is also practical because Justice is political and sometimes the pursuit of justice may need to be subordinated to political expediency in order to achieve better results. It is no secret that some of  those who organised the killings early last year are the same ethnic princes (both in ODM and PNU) running the country right now. Dislodging these buffoons from power may end up creating even more instability in the country. Better have a local tribunal in which those behind the killings would be exposed and perhaps forced to pay some fine while preserving the current state of cautious stability.

But there is also a case for an international tribunal. 1500 (more or less) human beings, with families, were killed. They were denied the basic human right to life. Someone has to pay for this. Political expediency, it can be argued, should never guide the administration of justice. Only an international tribunal would guarantee an apolitical trial of the cold-blooded killers who planned and executed the slaughter of  hundreds of their fellow Kenyans in Nairobi, Nakuru, Naivasha, Kisumu, Mombasa and other urban centres.

Either way, I think it is time that Kofi Annan leaked out the names of those implicated in the organization and execution of the killings. Expose them now Mr. Annan.