Proposal or rogue fantasy?

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-->I wish to respond to Mr. Kipkorir’s commentary (“Proposed law has good provisions, but therein lie clauses that may destroy us”, Sunday, 23^rd May, 2010) in which he makes alarmist statements that he should know are unfounded and unwarranted. I have enumerated them below.

1. Do Kenyans want to surrender their sovereignty to international treaties and covenants?

The Preamble to the Proposed Constitution states in paragraphs 3 and 7 thus: “PROUD of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation” and “EXERCISING our sovereign and inalienable right to determine the form of governance of our country and having participated fully in the making of this Constitution” (emphasis mine).

Article 2 (1), (5) and (6) read: (1) This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of Government; (5) The general rules of international law shall form part of the law of Kenya and (6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution (emphasis mine).

Article 94(1) reads: “The legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament” (emphasis mine).

Mr. Kipkorir, as an advocate of the High Court of Kenya, must know that ratification of treaties and covenants is a function of law-making, a function that is explicitly reserved for the Parliament in the Proposed Constitution. He is wrong in proposing that this lawmaking function will somehow be diluting our sovereignty by the fact that international treaties and covenants will be ratified by Parliament. He forgets to mention that even where Parliament ratifies a treaty or covenant, the power of the judiciary to determine whether the ratified treaty or covenant has contravened the provisions of the Constitution. In other words, if the treaty of convention is ultra vires the Constitution, it will be struck down and can never be enforced in Kenya.

For example, he states that “In September, we will send Kenyans to Guantanamo Bay freely.” He must know that extradition treaties between countries are always based upon domestic law. If Kenya has signed an extradition treaty with the United States of America, and among the subjects of that treaty are the treatment of suspected terrorists, the treaty to be given effect must be domesticated, that is, a law must be passed by the Parliament of Kenya to give effect to the provisions of the treaty. If the provisions of the extradition treaty and its subsequent law are ultra vires the constitution, especially if they are in violation of Articles 29 (Freedom and security of the person), 38 (Political rights), 39 (Freedom of movement and residence), 48 (Access to justice), 49 (Rights of arrested persons), 50 (Fair hearing) and 51 (Rights of persons detained, held in custody or imprisoned), it will be struck down. Indeed, under the Proposed Constitution of Kenya, the Government of Kenya would find it very difficult to participate in a scheme to arrest, detain and transport a Kenyan citizen to Gantanamo Bay, or any other country for that matter, without first satisfying the Supreme Court of Kenya that it has the power to do so under the constitution. I believe that under the new scheme of things under the Bill of Rights, the power of the State to act as it has always acted in relation to fundamental rights and freedoms has been severely circumscribed and that the State will no longer have a free hand as it enjoyed, especially, under the Kenyatta and Moi regimes.

2. Articles 26 and 43 are [therefore] the gateway (sic) for gay marriages and abortion on demand.

Article 26 (4) reads: “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 law” (emphasis mine). Article 43 (1) (a) reads: “Every person has the right … to the highest attainable standard of health, which includes the right to health care services, including reproductive health care” (emphasis mine).

Within the framework of the World Health Organisation's definition of health as a state of complete physical, mental and social well-being, and not merely the absence of disease or infirmity, reproductive health, or sexual health/hygiene, addresses the reproductive processes, functions and system at all stages of life. Reproductive health, therefore, implies that people are able to have a responsible, satisfying and safer sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so. Implicit in this are the right of men and women to be informed of and to have access to safe, effective, affordable and acceptable methods of fertility regulation of their choice; and the right of access to appropriate health care services that will enable women to go safely through pregnancy and childbirth and provide couples with the best chance of having a healthy infant.

With respect to Article 2(6), the operative words are "trained health professional" and "emergency treatment". The "opinion" in the context of the Article can only mean a "medical opinion" and such an "opinion" can only be made by a "trained health professional". "Training" to my mind implies that someone (the trained health professional) has minimum certified qualifications in a given medical field. Given that the number of women and children who have access to medical doctors is small, trained professionals in health care should include persons who have the training to determine whether there is need for emergency medical care and who have been trained to intervene in such a case.

If the Proposed Constitution is adopted, and laws are written to address the question of abortion specifically, why is it that Mr. Kipkorir thinks that Parliament will act without taking into consideration all the discussions regarding this important issue that have taken place since at least June 2008? Members of Parliament and Senators will not have such a free hand when it comes to writing legislation. Their respective roles will be circumscribed by the fact that the judiciary shall exercise oversight over any legislation that comes out of the National Assembly and shall strike them down if they happen to be ultra vires the Constitution.

3. Private ownerships (of land) shall be reorganised to make all title deeds leaseholds.

Article 64 reads: “Private land consists of –

“(a) registered land held by any person under any freehold tenure;

“(b) land held by any person under leasehold tenure; and

“(c) any other land declared private land under an Act of Parliament.”

The whole purpose of Chapter Five on Land and Environment is to ensure that the management of land in Kenya, whether private or public, is conducted in a transparent manner and that Kenyans are given an opportunity to acquire land for whatever reason. Mr. Kipkorir is wrong to mislead Kenyans that the land under freehold tenure shall be converted to leaseholds for this cannot be interpreted as such in Chapter Five.

In my opinion, it is the Land Question that has energised much of the opposition to the Proposed Constitution, especially the provisions related to the National Land Commission. This is the same Commission that is proposed under the recently published National Land Policy which seeks the most fundamental and radical reorganisation of land management in Kenya since Independence. Many people acquired large parcels of land during the Kenyatta and Moi regimes using unlawful means and I suspect that they are the puppeteers behind the curtains manipulating the review process with a view to ensuring that this Proposed Constitution fails at the Referendum in August. Indeed, until the Land question is laid to rest, this country shall know no peace, new Constitution or not.

4. If the Constitution states in one part that each community is entitled to practice their culture, how can you tell them again who can be their MP or Senator?

This is one of Mr. Kipkorir’s more frivolous statements. Nowhere in the Proposed Constitution does it state that a people will be compelled to vote for a particular candidate during parliamentary and Senatorial elections. The electoral process is based on the fact that candidates will be nominated by political parties or where person feels that the parties are not looking out for the interests of his people, he can stand as an independent. This is one of the progressive clauses that I would have expected Mr. Kipkorir to champion, seeing that the current political parties are corrupt and ineffective in representing the people. An independent candidate would be the perfect counterfoil to a political system that has constantly ignored the wishes of the people in its actions and deliberations.

How one practices ones culture, either alone or in community with others, is not a matter that would determine whether or not he could be a candidate during an election. If the peoples of Kuria, Sabaot, Mbeere, Tachoni, Teso or Tiriki feel that they have been ill-served by the political parties, nothing prevents them from electing independent candidates to represent their interests in parliament or the senate.

5. Wouldn’t the presidential field be tilted in favour of Raila?

This, I think, was the objective of Mr. Kipkorir’s homily. I have read and re-read the Constitution of Kenya Review Act of 2008 and the National Accord and Reconciliation Act of 2008 as well as Chapter 18 of the Proposed Constitution (Transitional and Consequential Provisions), and nowhere does the name RAILA AMOLO ODINGA appear. When the National Accord was signed between President Kibaki and Raila Odinga, the position of Prime Minster did not exist. It was created after the Accord was entrenched in the Constitution of Kenya and Raila Odinga as the leader of the largest party in Parliament was appointed the Prime Minister. However, and this is important, the post does not belong to Raila Odinga.

Section 3 of the National Accord and Reconciliation Act reads: “3. (l) There shall be a Prime Minister of the Government of Kenya and two Deputy Prime Ministers who shall be appointed by the President in accordance with this section. (Emphasis mine)

”(2) The person to be appointed as Prime Minister shall be an elected member of the National Assembly who is the parliamentary leader of –
”(a) the political party that has the largest number of members in the National Assembly; or

”(b) a coalition of political parties in the event that the leader of the political party that has the largest number of members of the National Assembly does not command the majority in the National Assembly.”

Unless Mr. Kipkorir knows the mind of Raila Odinga then he should be free to declare that Hon. Odinga shall stand for election in 2012 and hat he shall do so for the presidency. To the best of my knowledge, Hon. Odinga is yet to make such a declaration. How then is the presidential field tilted in Hon. Odinga’s favour? The transitional provisions envisage that the President shall appoint officers in consultation with the Prime Minister. President Kibaki has taken a liberal view of ‘consultation’ and there are no indications that he is about to abandon a strategy that has served him well. Indeed, he is yet to endorse a preferred candidate for the presidency, so unless Mr. Kipkorir knows something that we do not, he should feel free to share that knowledge with all Kenyans so that we are able to make up our minds whether we have a say in the whole matter.

The desire of Kenyans for a new constitutional dispensation is not a game and Mr. Kipkorir knows this. The Constitution of Kenya bears no resemblance to the Independence Constitution. It has been used to brow-beat political opponents, to detain them without trial and dare I say, to execute men and women without judicial authority. Mr. Justice Johann Kriegler (Ret'd), Justice Phillip Waki and Prof. Phillip Alston have written detailed reports of the abuses that have taken place as a result of the flawed Constitution that we now have. In every conceivable sense, the current Constitution is flawed and it must be replaced. The Proposed Constitution proposes a system of government that provides checks and balances among the 3 arms of government, the Executive, the Legislature and the Judiciary. Each is independent to the extent possible and each has the authority to reverse the actions of the other if they happen to overstep their boundaries under the law. It proposes a Bill of Rights that has iron-clad protections against the overmighty tendencies of the state, especially those of the Executive. This debate should be based upon a comparison between the Constitution of Kenya as last amended in 2008 and the Proposed Constitution. Such a comparison will show that the Proposed Constitution is a superior document as opposed to the extant one.

I sincerely hope that Kenyans have an opportunity to live under a constitutional dispensation that will protect ALL their rights against all enemies, foreign and domestic.

Sincerely,

SAMSON DAVIES MAUNDU, ADVOCATE