During our last trip to Kenya on the Georges Tadonki trial, I had the opportunity to develop an association with the lawyer Evans Monari of Daly & Figgis Advocates (photo – center), who is one of the best known business and human rights lawyers in East Africa.  Below is an article Evans has contributed for the RobertAmsterdam.com blog, and it is a great pleasure and honor to re-post here at CFP and feature these perspectives from such a unique and valuable voice from this region.

TEN REASONS WHY KENYA SHOULD VOTE “YES”

By Evans Monari

All indications point to the proposed constitution being approved by majority of the voters. And here are just ten reasons, why we in Kenya should approve the document and maybe convince the persons still opposing the document.

The national referendum for the proposed constitution is scheduled to be held on August 4, 2010. On that day, Kenyans will vote “yes” or “no” to the question “do you approve the proposed constitution?” it is provided by the Constitution of Kenya Review Act of 2008 that if more than 50% nationally and at least 25% in 5 of the 8 provinces vote “yes” the proposed constitution will be promulgated into law. There is general consensus that the country needs a new constitution, but the question is what kind of constitution does the country require to enable it grow from its current status to new realms of development in line with the developed world?

And does the proposed constitution meet this historic need? Does it augur well with our socio-economic needs and the unstable political reality?

A constitution is the charter that guides the country towards the destination it has chosen. And below are just ten of the major reasons why we as the people should vote ‘yes’ for the proposed draft- the draft which meets the needs and demands of our country. (The list is in no way exhaustive neither exclusive).

1) Strengthened Judiciary

The PC will strengthen the judiciary. The current constitution provides that Judges of the High Court should be appointed by the President with the consultations with the Judicial Service Commission. All the members of the JSC are presidential appointees. And therein lies the perception that some judges are appointed to further the President’s agenda. This is one of the main reasons that the public has lost faith in judiciary. And it is still clear to our minds that in the year 2007, the Orange Democratic Movement claimed that it could not go to court to challenge presidential elections since the judges were deemed to be pro-president. This lack of trust in the judiciary played a major role in fuelling and igniting the disastrous post election violence. These scenarios will be avoided once the draft constitution is enacted since chief judges (Chief Justice and Deputy Chief Justice) will be vetted by National Assembly. All other judges will be appointed in accordance with the recommendation by Judicial Service Commission whose composition is more democratic, most of the members having been vetted by Parliament. The process of appointing and removing judges is more clear and defined unlike the current scenario. Apart from the usual superior courts of record (High Court & Court of Appeal), a Supreme Court will be formed which will be a rung higher than the Court of Appeal. It’s insincere of the church and the no camp to use Kadhi Courts as laid out in Article 170 to mislead some citizens. Whether the draft is rejected or adopted, Kadhi courts will remain in our laws. The decision of Jesse Kamau & Others ‘invalidating’ the Kadhi Courts in the current constitution has not been given effect and it’s not live to the prevailing social-political situation which should always be a key element of decisions of such magnitude.

2) Land & Property Rights

Article 40 guarantees the right of every citizen to acquire and own land and/or property subject to limitations on non-citizens. The article goes further to even protect intellectual property rights (copyrights, patents and trademarks). The same article provides that such benefits shall not accrue to illegally acquired land. Therefore, the whole of Chapter 5 on land and environment should be read in the light of article 40 (which is one of the clauses which cannot be amended without a referendum). The whole of chapter five will be a big step towards protection of land rights and the era of illegal incisions and acquisitions should come to an end. Environmental rights are now enshrined in the constitutional, a big step forward.

3) Lean Efficient Cabinet & Controlled Presidency

In the proposed constitution, the powers of the presidency have been drastically reduced in comparison with the current constitution. Parliament will have more oversight in how the government is run. The president will not be allowed to appoint more than 22 Cabinet Secretaries (Ministers). The fact that cabinet secretaries shall not be sitting members of parliament means that they will not have political patronage and therefore can be hired and fired with no fear of losing political patronage. This will avoid the situations in the past where ministers engaged in corruption could not be sacked since the president feared losing the ministers political following. The issue of ministers claiming that their people are being targeted whenever they are faced with misconduct shall come to an end.

4) Reformed Attorney General’s Office

In the current setting the attorney general sits as a minister, a member of parliament, the principal state prosecutor and the chief legal advisor to the government, amongst other roles.
In the proposed setting, the office will be reconstituted with Director of Public Prosecutions and the Attorney General. Occupants of both offices will be vetted by parliament. The DPP will, be an independent appointee with legal teeth to freely prosecute cases on behalf of the public. The attorney general will be reduced into a government advisor amongst other ancillary roles. This is a big step in promoting governance in the country.

5) Devolution

The country will have two tier devolution. The country will be divided into 47 counties (Schedule one). Each county will have its local government with its executive. A senator from each county will form the upper house of parliament which will be referred to as senate and the lower house the national assembly. A specific allocation of funds will be allocated to the county and the county government will use the funds for local development. People will have more say in how the ‘national cake’ is shared and how the actual subdivision at the county level will be more democratic than what we have.

6) Legislature

Parliament will be composed of the Senate and the National Assembly. This will be a check and balance in itself since laws must be approved by both houses. Members of Parliament will be paying taxes since the proposed constitution provides that all persons shall be liable to have their salaries and allowances taxed. Furthermore, members of Parliament will not be able to increase their salaries as and when they wish. Parliament will also be required to make laws that do not derogate from the constitution unlike the current situation where Section 47 gives Parliament an ambiguous mandate on how far it can amend the
constitution.

7) Human Rights, Abortion & International Law

The proposed bill of rights is one of the best any country can ever get. It covers not only civil political rights but also socio-economic rights and third generation rights. Right to education, food etc will see the government being taken to courts whenever such rights are violated. And the onus will be on the government to prove that it has taken all the reasonable steps to provide such rights. Further the police powers (both literally & legally) are curtailed and courts are required to be pro-human rights. Furthermore, this chapter cannot be amended without the approval of the people in a referendum.

Article 2(5) and Article 2(6) imports international law to be part of the country’s norms. This is perfectly in order to allow the country develop in line with international best practices and it simply means that the government will not be entering into international agreements that it is not willing to honour.

Abortion is not permitted (Article 26) unless it is necessary to save the life of the mother or allowed under any other written law. This provision has been twisted on the light of Article 2(5) and 2(6) to mislead persons that abortion is allowed. This cannot be further from the truth. International law which will be a part of our laws recognizes the twin doctrines of cultural relativism and universality. Cultural relativism stipulates that local settings should be considered before international norms (being pushed by universalism) are given effect. Therefore a court of law is unlikely hold abortion legal in the proposed constitution.

Citizenship, Family Rights & Marriage

The proposed constitution allows dual citizenship. This has been in the offing for a long time. And the discriminatory provision that women could not confer citizenship to their foreign husbands has been cured. And finally citizenship cannot be lost through marriage, which is a big step forward. Article 45 (1) provides that the family is the natural and fundamental unit of society. It provides that a valid marriage can only be between persons of opposite sex. It goes ahead to recognize customary marriages. This is a progressive step of embracing the common grounds that families are essential and that our society does not recognize homosexuality. And why are some church leaders selectively ignoring this in their ‘no’ quest?

9) Taxation, Economic Development and Public Finance

For the first time, as laid out in Article 201, the country will have principles guiding its administration of public finances. Equitable share of national resources will be key in our country to promote balanced growth. The public debt (which is currently spiraling out of control) will be administered more openly. Taxation & government expenditure must be towards spurring economic growth. Central Bank of Kenya will be more open to scrutiny.

10) Progressive Constitution and Political Reality

Since the clamour for a new constitutional order has been ongoing for three decades now, it’s only right for the process to come to an end. The proposed constitution is a big improvement of the current document. It is heavily borrowed from the South African Constitution (1966), Canadian Charter and the German Basic Law of 1945. It is promoting democracy, good governance and the rule of law. Politically, it will be unwise for the country to go to the national elections of 2012 with the current constitution. The proposed constitution will promote investments in the country, creation of jobs (due to reduced corruption and good business atmosphere), greater freedom and general development of the country.