Friday, July 02, 2010

Governance and the Constitution

Can governance and the constitution be truly separated? Okiyah Okoiti Omtatah wishes to peddle half-a-loaf in his assertion that the two can indeed be separated and that in the current climate the question of governance can be addressed separately from that of the Proposed Constitution. I submit that he is wrong and tragically misinformed as to the role that a good constitution plays in the governance of a country.

The many ills that have been visited upon this nation can be laid directly at the feet of the mis-governance of our political, religious and civil society leaders and all can be blamed squarely on a constitution that has been easy to abuse, misuse, amend and ignore almost at will. The three presidential regimes have demonstrated that the power enjoyed by the executive has been used to great effect in the mis-governance of Kenya and all derived their authority from the provisions of the constitution. To posit that their actions can be divorced entirely from the constitution is posit a fallacy that has no bearing in reality.

When we compare the Constitution of Kenya with the Proposed Constitution, it is clear that we are making a clean break with the Westminster Model that is established under the current constitution, for it has failed miserably in fomenting a governance structure at the service of the citizenry. The Proposed Constitution seeks to insulate the executive as much as possible from the interference of the political class while at the same time providing the tools for the effective management of national resources with adequate oversight and accountability.

In the separation of the executive from Parliament and in the creation of an accountable structure for the devolution of political power and resources at the county level, we seek to create a system where the management of national and local resources is as efficient and effective as possible. Of course, it is still possible that this new system will come to grief but that is a possibility that must be weighed against the certainty of retaining a system that has been the bane of this country for nigh on fifty years. At least in the governance of this country, the Proposed Constitution creates structures that are light years ahead of the current ones in terms of addressing the needs and aspirations of Kenyans: the separation of the executive and the National assembly; the oversight of Parliament in relation to key national decision-making; the establishment of truly independent national institutions; the devolution of political power and national resources to the county level; the clarification of the relationships between the three arms of government with clearly delineated mandates, functions and powers ... the list is pretty long.

The current system, where the political class retains an overwhelming capacity to inflict upon Kenyans decisions that are unreasonable, arbitrary and capricious has resulted in human rights abuses, civil rights abuses, miscarriages of justice, grand and petty corruption, a loss of national prestige in the comity of nations, the mismanagement and waste of national resources and many other ills. We now have the opportunity to re-write our history, beginning with a clean slate for what is definitely going to be a long hard slog. No one should be naive enough to think that the transitional period will not be accompanied with turmoil or chaos; the refuseniks will see to that. Only the blindly optimistic think that the financial and other costs of the implementation of some of the provisions of the Proposed Constitution will be low or negligible. The number of interested parties against the successful implementation of the draft is long and growing as the ranks of the refuseniks acquire new members. If we do not manage the transition period well, we may never survive the adoption of the Proposed Constitution.

However, to my mind, the risks are worth it if in the end the possibility of a Kenya that can hold its head high, a Kenya that looks out for its own is achieved. We must confront the ills of this country with our eyes open and this draft is the first clear step in that direction. The current constitution provides no avenues for the effective participation of the individual in the management of national priorities. The political process has been privatised and retained in the hands of a few individuals whose interests are more of the selfish kind than of the nation-building one. The number of men and women who have grown fat off the sweat and toil of other is long - simply count the number of MPs that have been elected since Independence and you get an idea of the numbers of leeches that have been sucking the national veins dry of its blood. We will not even talk of the even larger numbers of individuals and corporations that have benefited directly and indirectly in ensuring the 'right man' has been elected to high office. The proof of the inherent iniquities in the current constitution can be seen in a national infrastructure that is old, broken and inefficient.

The link between governance and the constitution is real. One cannot have one without the other. Therefore, to talk about voting YES is to admit that this link has been a millstone round our necks and that it is time to try something new; to vote No is to refuse to recognise that the ills of mis-governance can be laid at the foundations of a moribund system as established under this constitution. Given a choice between retaining the current constitution or adopting the Proposed Constitution, I know how I would vote. Do you?

They all fall, eventually

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