Tom Kagwe on the Good, Bad & The Ugly of the Wako Draft

THE CONSTITUTIONAL DEBATE: THE GOOD, BAD & THE UGLY OF NEW BILL

By Tom Kagwe, Research Consultant, Nairobi (from the KARA newsletter)

The following principles could summarize what Kenyans wanted in the new constitution and be used to critically assess the Draft Constitution of Kenya (2005). That the new constitution should:

(a)Recognize the sovereignty of the people;
(b) Ensure separation of powers and maximum checks and balances;
(c) Enhance supremacy of the constitution and safeguarding of constitutionalism;
(d) Promote people participation in governance through devolution;
e) Enshrine an expanded and enforceable bill of rights;
(f) Deconcentrate powers of president;
(g) Enhance fair and equitable distribution of national resources and opportunities;
(h)Enhance equality, equity and mainstreaming of gender;
(i) Ensure affirmative action for people with disability, minorities and the marginalized; and,
(j) Ensure a comprehensive, genuine and fundamental change from the current Constitution.

The Good:

The powers bestowed in the presidency in the current constitution have been reduced to an extent; separation of powers have been maintained to an extent where the president cannot hire and fire all public officers at will and the legislature and judiciary are fairly independent; people's sovereign authority has been recognized but this is subject to debate given that devolution of powers begins at the district, and not at location as recommended by Bomas Draft. Generally, the Wako Draft is better than the current constitution it seeks to replace but not to the extent of being a radical departure from the current.

The Bad:

While the directive principles of State policy enshrined in Chapter 3 were obligatory to the state in the Bomas Draft, Wako Draft removes that obligation. Further, while the three generations of human rights exist in both Drafts, the Wako Draft has stated that the enjoyment of these rights depends on resources and those who feel that such rights have been violated, go and complain to the Commission on Human Rights and Administrative Justice. Thus, the onus of proving that the state had resources and refused to meet the 2^nd and 3^rd generation rights lies with the individual. Further, scrapping the Senate and having a forum instead does not augur well with the rights of district governments to participate in national debate and legislation. In terms of women gains in the Bomas Draft, scrapping of the Senate has reduced such gains.

The Ugly:

Generally, the Wako Draft has some ugly provisions, which betray the spirit, principles, and objectives of the review. For example, Wako by equipping the presidency with powers to hire and fire ministers at will, and determining the size of cabinet and the leeway to bring at most 20 percent of members of cabinet from outside at will, this is indeed ugly. Further, the presidency has been given the powers to create and abolish public offices, and appoint (through parliament) but fire at will holders of such offices! Another example would be that Wako Draft has expunged the reference and the rights of the marginalized and minorities. This has been done through and through the Wako draft. This is contrary to the principle ensuring affirmative action for people with disability, minorities and the marginalized. Further removing safeguards against abuse of nolle prosequi in unpalatable having seen how these powers have been abused in the recent past - powers that have now given to the future Director of Public Prosecutions.