Thursday, June 20, 2013

First use the Constitution you have before amending it.

Okiya Omtatah joins the growing list of clamourers for the amendment of the Constitution to "strengthen" the Constitution (Amend the Constitution to strengthen the Senate, Daily Nation, 20/06/13.) He argues, rather persuasively, that the Senate to play a powerful role in checking the Executive. He adds that the Senate should enjoy these new powers because, as each senator represents a region bigger than a constituency and as it is more collegial because of its smaller size, it will not be riven with party differences as is the norm in the National assembly. He calls for the recognition of the Senate in law-making; after all, laws in Kenya are known as Acts of Parliament, not Acts of the National Assembly or Acts of the Senate.

While persuasive, Mr Omtatah is wrong. The Senate, as created under the Constitution ( a Constitution that a majority of voters ratified in 2010), is not an "upper chamber" in line with "international best practices." If that is what we had wanted in 2010, the Harmonised Draft and the parliamentary amendments proposed in the run up to the referendum would have reflected this desire. As it is, it is becoming clearer and clearer that Kenya cannot afford a bicameral Parliament that is more interested in the ever-fatter wallets of its members rather than the bread-and-butter issues that affect ordinary Kenyans.

Even the international best practices that Mr Omtatah alludes to are not as clear as he would have you believe. India, the world's largest democracy, has a two-chamber Parliament, but it is the Lok Sabha, and not the Rajya Sabha, that wiled true legislative power. The Rajya Sabha, just as Kenya's senate, does not enjoy extensive powers nor does it play a grand role in checking the Executive branch. The same is true about the House of Lords in the United Kingdom. But our closest example in terms of government-style is the United States Senate. But its recent behaviour has proven that a strong Senate is not necessarily a panacea for governance ills. It has somehow managed to become one of the most loathed public institutions in the United States because of the partisan animus that animates its two main parties. Recent debate on gun-control, healthcare and immigration demonstrate that even when a government programme receives the overwhelming support of the majority of the voting public, it will still go down in flames if the Senate refuses to play along.

It is early days yet to demand an amendment to the Constitution simply because the National Assembly, the Senate and the National Executive have not yet learnt to rub along in conviviality. These are the teething problems that we could never have anticipated when the Constitution was ratified-by-referendum in 2010. The sheer haste with which we rushed through the programme means that we will have to work out the kinks in the Constitution over the long term. To this author's mind, the key risks to governance in Kenya seem to revolve around the missteps of the National Assembly. The majority Party is playing less an oversight role in checking the excesses of the National Executive and more of a flower-girl role, championing every decision of the National Executive even where they are plainly not in the national interest.

The problems we are experiencing today have very little to do with the effeteness of the Senate but more of the misguided pursuits of the National Assembly. It does not help that many members of the National Assembly are not the sharpest tools in the tool-shed, demonstrating a curious lack of intellectual curiosity in the ins-and-outs of governance, preferring instead to carry on campaigning as if campaigning is all there is to governing. If we are to adopt the United States model, then the National Assembly must reflect the best (and worst) of the United States House of Representatives. Regardless of what the US Senate wants, the House of Representatives reflects the will of the American people like nothing else. It is rambunctious, rebellious and difficult to handle. It is in no way a flower-girl for the Executive branch. When it speaks, even when it does so in a starkly partisan manner, it reminds the Executive that it will not always get what it wants.

Take the looming education-sector strikes as an example. It is not for the National Executive to exclusively determine national priorities anymore. That was how things were done in the first Kenyatta administration, and the Moi and Kibaki ones.The Committee of Experts rightly saw this as a risk to the equal treatment of all Kenyans. Why the National Assembly has been unable, say, to take out 41 billion shillings out of the defense budget or the roads budget to pay deserving teachers beggars belief. If the national executive will not bend to the will of the more powerful National Assembly where do we get the impression that it will do so when it comes to a more powerful Senate?

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