analysisBy Gitonga Muriuki
Nairobi — The most contentious chapter in the Draft Constitution is on the Executive (No 12). It is purported to be contrary to the Bomas recommendations and people's wishes.
The chapter favours a hybrid system of Government with a Premier whose functions, as spelt out under section 163(2), are those of a chief minister deriving authority from the President. Long before section 27 of the Constitution of Kenya Review Act (cap 3A of the Laws of Kenya - the Wako Draft) was published, there were violent demonstrations in Kenya over its passage in Parliament.
Protesters said Kenyans agitated for constitution review in the early Nineties to clip the powers of the President. This, they said, can't be achieved without adopting a system where the Premier wields more power than the elected President.
Some of the arguments to reject the Draft are expressions of displeasure with parliamentary interference. That is why the civil society, while threatening mass action, barred parliamentary interference with the Zero Draft. The same was critical of the Bomas constituent assembly as one properly constituted to make a new Constitution. The requirement for a referendum was meant to undo any wrongs manifested in the entire process.
One notion that cuts wide in the opposition to the Draft is that Parliament should not have amended the Bomas document. When 22 people, among them 15 MPs, filed an application to stop publication of the Draft, two of their 22 grounds were (a) only an elected and representative constituent assembly can be a valid constitution-making body. No other law has taken the mandate from people to Parliament or any other existing body.
And (b), that MPs, the President and the AG have taken oath to protect the Constitution. Each of them is incompetent to write a new one. Thus the Bomas Draft was supposed to be tested on the market place without further branding. But that was never to be, partly due to the acrimony that characterised the end to the delegates' conference.
Parliament abdicated itself the responsibility of identifying and resolving the contentious issues, with the culmination of the Draft. The question is whether Parliament did this within the law. The answer must be "Yes" because Parliament, having adopted by approval the wisdom of the Parliamentary Select Committee on the Constitution, undertook the exercise within the confines of section 27(2) of the Constitution of Kenya Review Act.
The other question is whether MPs represented Wanjiku in the exercise of power. Such a query arises from the presumption that some groupings are more representative of the people than Parliament is - say the church.
But no. Parliament is not only a true representative of the people but a reflection of the society in more ways than the Bomas team could have been. MPs are elected from all corners of the republic in accordance with section 32(1) of the current Constitution. They can exercise their legislative power donated by section 30 of the Constitution to resolve issues in the document.
A parliamentary system of government strongly propagated by anti-Wako protagonists envisages governance by the authority of Parliament. This means that in situations where Wanjiku cannot participate directly in a political process, due to logistical or other problems, her elected representative in Parliament can do so on her behalf. It is within citizens' powers to elect political representatives of their choice. It is unfortunate if this power is exercised carelessly or ignorantly, only to end up blaming MPs for carrying out the mandate we bestowed on them.