It appears that after more than 20 years of waiting Kenyans will finally have a new constitution after August 6th. The Attorney General Amos Wako (I can’t believe this man is still in office) published the document today. The electoral commission will formulate the referendum question and announce the campaign period for the August 6th referendum. It is almost a foregone conclusion that the document will be passed by a majority of Kenyans. The latest poll indicated that 64% of Kenyans support the document compared to 17% who oppose it.
The Church and a section of politicians are opposed to the document because of its wording in relation to abortion and Kadhi’s courts (see below) and on matters of resource allocation. With regard to abortion, my stand is that the constitution does nothing against Kenya’s conservative bend. If anything it still needs some doses of liberalism on family law and social justice in order to protect our mothers and sisters and other marginalized peoples from the rather dated views of the Kenyan patriarchy.Our mothers and sisters are not crazy child-killers. They too are very conservative when it comes to abortion. In this case the law will only serve to bring out of the shadows the thousands of illegal abortions that result in the death of many women in our towns and cities. Also, if the church is so concerned with abortion, how about doing so by promoting birth control? I still don’t get the church’s justification for its consignment of millions to an early grave (thanks to HIV/AIDS) and orphanhood because of its bizarre policies on the use of contraceptives.
And on the Kadhi’s courts: the wording speaks for itself. It only applies to Muslims’ personal issues and even then only with their consent. No Christian will ever have to face a Kadhi. Plus as I have pointed out before, the church’s attempt to impose Christian morality on Kenyans through the constitution is not consistent with their opposition to Kadhi’s courts.
Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.
On Kadhis’ Courts
(1) There shall be a Chief Kadhi and such number, being not fewer than three, of other Kadhis as may be prescribed under an Act of Parliament.
(2) A person shall not be qualified to be appointed to hold or act in the
office of Kadhi unless the person—
(a) professes the Muslim religion; and
(b) possesses such knowledge of the Muslim law applicable to any sects of Muslims as qualifies the person, in the opinion of the
Judicial Service Commission, to hold a Kadhi’s court.
(3) Parliament shall establish Kadhis’ courts, each of which shall have the jurisdiction and powers conferred on it by legislation, subject to clause (5).
(4) The Chief Kadhi and the other Kadhis, or the Chief Kadhi and such of the other Kadhis (not being fewer than three in number) as may be prescribed under an Act of Parliament, shall each be empowered to hold a Kadhi’s court having jurisdiction within Kenya.
(5) The jurisdiction of a Kadhis’ court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.
What I liked:
- The bicameral parliament. It is expensive but will serve to give the regions a voice.
- The regional governments. Great idea, but how are they going to be funded? I would have loved it if there was a provision that each region should generate enough revenue to fund a fixed percentage of its budget. This way the regional governments can have incentives to promote economic activity in their regions. Better yet the central government should have been mandated to only issue matching grants to these regions – to spur competition among them for funds for such sectors as education, healthcare, infrastructure development, etc
- Retention of the Kadhis courts. I am glad that sanity prevailed on this one. Kenyan Christians were being absolutely crazy in their opposition to this.
What I did not like:
- The judiciary. Judges of the Supreme Court should have had life tenure. They should have created regional court systems. And they should have done away with the “traditional” court systems – whatever they are?
- Traditional marriages should have been trashed. Marriage should be between two people. Polygamy is an affront on women’s rights. Period.
- And about gay marriage, I don’t think it was necessary to spell out that marriage is between a man and a woman. These guys should have been open minded enough to allow for the possibility of Kenyans being more liberal than they currently are.
- Vote share for Nairobi in the Senate. Nairobi should have had one of the biggest shares of Senate votes – by virtue of it being the economic hub. Instead the Rift Valley, with its many underdeveloped counties, has the largest share. Call it urban bias, but I don’t like the idea of rural non-tax-payers always having the biggest say on who gets to steal the money paid in taxes by Nairobians and other city dwellers.
- The lack for autonomy of towns and cities. The counties idea is great, but we should have designated cities and towns that were autonomous – with their own police forces and stuff. Security and Justice are political and should have been devolved too.
And in other news, Kenya is still among the most corrupt countries in the world. The new TI corruption perception index ranks Kenya at 146 out of 180 states. This is one more reason to fire Amos Wako, Kenya’s Attorney general since forever. And while we are at it we should also get rid of the Chief Justice. Mr. Gicheru has not lived up to expectations. He was appointed to clean up the judiciary but ended up in the pockets of the powers that be.
The document is here...
290 members of parliament. 100 Senators. Several regions and more than 70 counties. These are among the new burdens that will be added onto the load currently weighing down the Kenyan taxpayer. The draft constitution released today also proposes an executive Premier and dual citizenship.
390 elected legislators is a bit too much, if you ask me. Kenya is a country of 40 million in which only a small fraction engages in taxable economic activities. The rest are rural subsistence farmers who don’t earn taxable income and engage in the formal economy only through sales taxes. Because of this I find it too much of a burden to ask the average Kenyan worker to foot the bill for an unnecessarily bloated legislature. Kenyan MPs are among the highest paid in the world. Indeed they earn more in a year than US senators. And they don’t pay any tax!
I still haven’t read the document yet, after which I look forward to commenting on the devolution structure and the hybrid system of government it supposedly proposes.
Despite its weaknesses, I think this is a step in the right direction. Better this than being stuck with the “home guard” constitution that we currently have.