6 July 2009

Kenya: NCCK Statement on the Status of the Nation

document

Let us Make a Better Kenya

1. Introduction

The Executive Committee of the National Council of Churches of Kenya has met here at Jumuia Conference and Country Home, Limuru, to reflect on the status of the nation with special emphasis on the constitution review process. As we reflected, we were comforted by the words written in the book of Joel 2: 24 - 27. In this passage, God speaks on the theme of restoration after years of waste, destruction and suffering. God specifically promises: "I will repay you for the years the locusts have eaten You will have plenty to eat, until you are full." And so as the Council, even though the country has much to inspire gloom and hopelessness, we believe that Kenya is on the threshold of healing, restoration, prosperity, national dignity and pride. This will nonetheless take the contribution of every Kenyan and the NCCK fraternity is committed to playing its part. We encourage all Kenyans to have hope and make their contributions for the betterment of the nation. However, we remain concerned that there are many people who wish to keep Kenyans in the bondage of poverty and suffering for their own selfish reasons. These are the people who continue to engage in corruption, gangsterism and other forms of perversion of justice. Key among these has been the failure by the government to punish offenders, thereby promoting the growth of a culture of impunity and disregard for law and authority. With this in mind, we wish to share the following with Kenyans.

2. Review of the Constitution of Kenya

After more than two decades of seeking to have a new constitution, Kenyans once again have a golden opportunity to lay the foundations for a better nation. We do appreciate that the Committee of Experts is now operational and spearheading the review process. At the outset, we call upon all Kenyans to engage in this process with a keen focus on national interests and welfare. The new constitution must be one based on principles that will facilitate the creation of a just and sustainable society. We must aim to create a society that reflects our prayers in the National Anthem: "O God of all creation, Bless this our land and nation, Justice be our shield and defender, May we dwell in unity, peace and liberty, Plenty be found within our borders". Towards this, the new constitution must be one that safeguards the rights of all Kenyans, and one in which all people are held responsible for doing the right thing. It is therefore essential that Kenyans make proposals that will facilitate justice and equity for all. No individual, institution or group should come into the process with narrow sectoral interests, be they political, religious, gender or class. At the same time, we urge the Committee of Experts to be realistic when calling for presentations and memoranda. If individual Kenyans as well as institutions and organizations are to make serious presentations, they should be given adequate time to process the issues. We are concerned that up to this point, the Committee has been giving very short notices, thereby blocking many Kenyans from making considered presentations. We hope the Committee of Experts is not intentionally trying to shut out Kenyans from giving their views. In the recent past, the Committee of Experts iden tified three issues they consider to be contentious and called for presentations on the same. On these, the National Council of Churches of Kenya holds the following positions:

2.1 Devolution in our deliberations

We found that our system of government as it stands is wasteful and unresponsive to the needs of Kenyans. Of note is that government offices are duplicated at all levels, that is, national, provincial, district and divisional, irrespective of whether their services are required at those levels or not. In addition, funds meant to facilitate provision of services to the people are dispersed to different organs resulting in an uncoordinated and ineffective utilisation. After serious reflection, the NCCK proposes that under the new constitution, exercise of power and administration of resources should be at two levels, national and state. An appropriate title for the state units shall be identified, guided by the principle that it should enhance national unity and cohesion. Each of the two levels of government will have their powers and responsibilities clearly defined in the constitution to prevent duplication and neglect. As such, the state governments will execute all functions and powers relating to state matters, while the national government will execute functions and powers related to national issues. The state governments will thus have components of executive, legislative and judicial functions to facilitate delivery of services to the people in their areas. At the national level, representatives from the states will form a Senate which will serve as a second chamber of the Parliament, while at the state level, there will be a house of representatives to legislate on local issues. On the main, the national government will be responsible for territorial integrity, defense, taxation, national budgeting, national cohesion and critical national policies. To facilitate efficient transition, there shall be need to develop a mechanism to compel the central government to release its equipped and trained personnel to the devolved units to ensure effective governance and service delivery at that level. Further, the central government will be required to fast track the training of more staff for the unit of devolution.

2.2 System of Government

We in the Council hold that either a Parliamentary or Presidential system of government can work, provided that the system adopted observes the following principles:

a) The Chief Executive, whether called President or Prime Minister, shall be elected directly by the people of Kenya

b) The Chief Executive will have a running mate who will be his / her deputy

c) The Chief Executive and his / her deputy will not be Members of Parliament

d) Cabinet ministers and their assistants shall be appointed by the Chief Executive from outside

Parliament

e) All appointments and other administrative decisions of the Chief Executive shall be subject to approval by Parliament

f) The provincial system of government shall be eliminated to allow for transition of service delivery to the devolved units. The personnel affected shall be redeployed within the adopted levels of governance

Having considered the proposed devolution and the options available, NCCK expresses a preference for the Presidential system.

2.3 Judiciary

We in the Council are increasingly convinced that the Judiciary is an important arm of the government in that it is the arbiter and administrator of justice. We are therefore saddened that in the past, successive governments have deliberately weakened the Kenyan judicial system through manipulation by both the Executive and Legislative arms of the government. The manipulation has been deliberate, intended to protect the members of the Executive and Legislature from prosecution for crimes they commit.

To remedy this, we recommend that judicial powers be vested in the Chief Justice. Matters of the judicial system will then be handled by the Judicial Service Commission, upon whose recommendation the President will appoint judges and senior officers of the Supreme Court, the Court of Appeal and the High Court. Such appointments will be subject to approval by Parliament. In addition, the constitution should provide for operational and financial autonomy of the Judiciary to eradicate manipulation, thereby allowing the judiciary to be held to account by the people of Kenya. The constitution will also stipulate the exercise of judicial powers within the devolved units. We also urge that the new constitution shall be true to the principle of separation of state and religion. To accommodate the requirements and rights enjoyed by different religious communities, we recommend that the constitution shall provide that there will be religious courts which shall be defined under legislation.

2.4 Transition

The Council continues to hold her position that the current government be dissolved and new elections be called at the earliest possible moment, especially now that the Interim Independent Electoral Commission is in place. Further, we appreciate that virtually all the political parties in their manifestos promised to effect a new constitution. In addition, the parties involved in the negotiations mediated by the Panel of Eminent Personalities put it in their agreement that created the coalition government that their union would collapse once a new constitution was enacted. This they did without coercion or manipulation. It is our expectation that the political leaders, under the guidance of the two principals, will do all in their power to disregard their personal interests and facilitate the nation to get the constitution that this nation deserves. To facilitate this commitment, we propose that when the new constitution is enacted, one of the following two options is taken: One, those serving elective positions will be paid an honorarium equivalent to the sum of the salary they would have earned had they served the remainder of the parliamentary term to allow for a new parliament to effect the new constitution by enacting the necessary legislation. Or two, that those serving elective positions be allowed to complete the remainder of the term but they be put under pressure to enact the necessary legislation to effect the new constitution.

3. Petition to the International Criminal Court

Since 1963, the people of Kenya have suffered gross violations of their rights and fundamental freedoms by influential persons and state organs. These abuses have continued unabated because of the failure by the government to investigate, prosecute and punish the perpetrators of these crimes. As a result, a culture of impunity has taken root in the country and threatens to plunge us into a dark era of lawlessness and death. A just, sustainable and prosperous Kenya is only possible when all people are

4 Treated equal before the law and every crime is punished to the full extent.

For this to come to be, impunity must be dealt with conclusively and decisively. We believe that investigation, prosecution and punishment of the perpetrators of the 2008 Post Election Violence will be the first step in eradicating impunity. Appreciating this, the Commission to Investigate the Post Election Violence (CIPEV - also referred to as Waki Commission) recommended that a special tribunal be formed to investigate and prosecute the perpetrators. Subsequent to this recommendation, the government through Legal Notice No. 66 gave the commencement date of the International Crimes Act 2008 as 1st January 2009. We believe that this was an intentional provision by the political class to sabotage the Special Tribunal for Kenya if and when it is established. This is because the provision gives the suspects an escape route when they invoke related legal provisions which include:

a. Section 77(4) of the Kenya Constitution which stipulates that a person cannot be held guilty of an act if the act or omission did not constitute an offense at the time it was committed

b. Since the commencement of International Crimes Act 2008 was 1st January 2009, crimes committed before then cannot be tried under that law

c. After the law establishing the tribunal is enacted, it will still be limited from trying persons for crimes committed before the tribunal came into being

4. The Hague Option In this regard, the NCCK is convinced that only an international tribunal or court based on the Rome Statute of the International Criminal Court, which statute Kenya ratified on 15th May 2005, can legally and effectively prosecute and punish the perpetrators of the Post Election Violence. For this reason, the Council on 18th March 2009 launched a campaign to collect at least a million signatures to lodge a petition that the International Criminal Court immediately commences investigations and prosecutes the perpetrators of the post election violence. Today, we have here dedicated both the petition and signatures received from Kenyans, and set in motion the process of their presentation at the International Criminal Court at The Hague, Netherlands.

5. Conclusion

Kenya remains a nation in God's hands despite the challenges we are facing. We trust that God will fulfill the promise of restoring our nation to a state of prosperity. We have therefore taken the above noted actions that are required on our part and that of all Kenyans as a national duty. Above all, we remind all Kenyans to rise above the ethnic and other vested interests so as to uphold the dignity of the lives of all Kenyans and protect them from political and other expediencies of the nation's detractors. Let us all remember that a nation faces destruction once the rule of law is disregarded or subordinated to any other interests.

May God bless Kenya.

Signed

On 2nd day of July 2009 at Jumuia Conference and Country Home, Limuru.

Rev Dr Charles Kibicho, Chairman

Rev Canon Peter Karanja, General Secretary

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