Kill Bill: Constitutional Amendment Edition

Background: The Ministry of Justice is set to table an important Bill before Parliament. The Constitution Amendment Bill, 2011 proposes to amend two articles in Constitution. First, article 101 (1) which currently reads that General Elections will be held in the month of August of every fifth year. It is proposed that elections be held on the fifth year in the month of December. The second amendment is article 90 which currently doesn’t reflect the 1/3 minimum representation principle in article 27 in all elected and nominated positions in Parliament. The amendment proposes that after elections, the necessary number of seats be created for nomination of listed candidates to ensure compliance with the 2/3 maximum gender principle.

Our Shameless August House Wants December Poll Date

As a follow-up to last week’s piece, I am once again concerned about the backward way in which we are purporting to create long-lasting institutions in this country. How does one claim to be creating a foundation for posterity when institutions are centred around individuals? Granted we cant change the fact that Mr. Isaak got his job back but it is unfortunate to hear him proclaim that it is not logistically possible to hold General Elections in August 2012, soon after his nomination was approved by Parliament. Did he do it to please his political backers? Was he saying it to give the IEBC more time to comfortably work towards preparing the country for Elections? Whatever the case, it is in extremely bad faith for him to openly advocate for a contravention of the Constitution not to mention the awkwardness of having the country’s Election Chief involving himself with the politics of the day.

Over to the AG. Frankly, I’m disappointed. It was hoped that Prof Muigai’s voice of reason and wisdom would prevail among those in Cabinet and Parliament, the likes of Justice Minister Kilonzo and others, who are hell-bent on amending the Constitution prematurely.

Furthermore, the AG seems to have been unsuccessful in getting Parliament and the Cabinet to allow the Judiciary to be the final arbiter on the matter of the 2012 election date. The growing opinion within Cabinet is that regardless of what Chief Justice Mutunga and the Supreme Court say about the exact date for the 2012 General Elections, Kilonzo and company will still table the Constitutional Amendment Bill before Parliament and put it to a National Referendum.

Spreading doubts about the two-thirds principle
Public opinion on the issue of the Election Date seems to be more or less clear that the sooner we go to the polls the better and that the move to change the poll date is primarily motivated by selfish interests of the parliamentarians. But the issue of 1/3 minimum gender principle is less understood by the general public and it is viewed with a lot of skepticism as idealistic, illogical and an aspirational provision as opposed to an immediate requirement.

To this one may ask: what is so radical about requiring fair gender representation in government? Are we really trying to compare the 1/3 minimum principle to South Africa when they enshrined the right to non-discrimination on the basis of sexual orientation in their 1996 Constitution?

Okay, I have digressed.

It’s no secret that the inclusion of the amendment to conform with the 1/3 minimum gender representation is meant to decieve the public. Support the Bill under the guise of making the attainment of the gender principle more “realistic” would also result in a change of the Election Date changed thereby giving MPs 4 extra months of tax-free salaries while allowing the Parliamentary, Gubernatorial and Presidential aspirants amongst them to comfortably wrap up their respective campaigns.

Admittedly the formula enshrined in the Constitution doesn’t add up as required by the two thirds principle in the Bill of Rights, but isn’t there any way of remedying this oversight without amending the Constitution? Unfortunately, it appears that two provisions of the Constution on the gender issue are in direct conflict therefore an amendment can be the only cure.

Notwithstanding this reality, we MUST question is the timing and sincerity of this Amendment Bill.

Why propose to make the amendment now when the amended provision could have easily been incorporated in the Elections Law as an interim move and then propose to have the Constitution amended at a later date?

Exploiting the gender issue as a means to try and change the Elections date is a broad daylight usurpation by the Government of the People’s power vested in the Constitution. This travesty of justice and brazen display of impunity must not be allowed to stand. Therefore, if this Constitutional Amendment Bill leaves the floor of Parliament unchanged and is put to a National Referendum, we must categorically reject it.

The Will of the People will reign supreme.

3 thoughts on “Kill Bill: Constitutional Amendment Edition

  1. When I look at the work cut out for the IEBC, iWeep! So much has to be done within so short a time that I find it mind-boggling how the August elections will be managed. Either way, the katiba I voted for said August and as much as I may not want to have it then[not being paid to say this] I believe it is bodies and systems that are subordinate to that constitution and such should do whatever is in their strength to ensure that come rain or high tide, elections are held on the second Tuesday of August-2012!

    How the bill will go through parliament is also beyond me. Hear me out! Any MPig assured of re-election would want to give his opponents as little chance to make an impact as possible making August elections very important to them. Any MPig assured of not returning,and they are many, would want a December elections date to make sure they derive as much cash as possible for the winter-time in their political lives! There lies the conundrum.

    As for AG Githu, he wasn’t my choice, had I been asked, but he has started on an awfully bad precedent on this one.

    Waiting to see what CJ Mutunga will say on this……I can assure you…..It will be seismic!

  2. ‘Notwithstanding this reality, we MUST question is the timing and sincerity of this Amendment Bill.’
    Perhaps it has something to do with this.
    http://www.haguejusticeportal.net/smartsite.html?id=12919.
    It’s my opinion, that politicians are publicly enemies, but really are homies. If the last election didn’t prove that then the next one will. As long the son of one of the richest families in Kenya can’t be in elections, then the process shall be stalled. If he ain’t winning the presidential seat he will probably take the VP one. How else would you explain the VP Shuttle that ferried around the VP and diplomats to international conferences to convince other foreign nationals to come to their aid? If that’s not someone having your back I don’t know what is.

  3. Pingback: The Week That Was: Interesting Tidbits… | Diasporadical

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