THE SECOND REPUBLIC: WHY THERE IS REASON TO BE OPTIMISTIC

By Elizabeth Sisenda

Promulgation of the Constitution of Kenya 2010

In the year 2005, Kenyans for the first time in the country’s history went through a constitutional referendum. A lot of deliberation had been made to come up with the draft constitution. Pressure for constitutional reform had been mounting prior to 2002 from opposition political parties, the Law Society of Kenya, civil society and various NGOs, climaxing in 2002. Reason being, Kenyans and especially opposition politicians, had realized what immense powers the office of the president holds constitutionally. This translated into executive dominance over the other two distinct arms of government, as well as having the machinery of the state concentrated in the executive through the office of the president. As a result, the office of the president not only had an edge vis-à-vis the other arms of government in terms of political power, but it also had control over the allocation of resources nationally with insufficient checks on it by parliament. 

The Bomas draft had been proposed as an alternative to Kenya’s previous constitution. Although it had its fair share of critics, several groups had been willing to adopt it for various reasons. Nonetheless, the Bomas draft underwent various amendments prior to and after the 2005 referendum before the final document, which was considered acceptable by the majority of the interest groups, was tabled by the attorney-general on 6^th May 2010. Thereafter, Kenya went for a constitutional referendum for a second time on 4^th August 2010. The final draft, which the government officially endorsed, was overwhelmingly voted in by the public in a process that was considered to be Kenya’s best organized election so far (especially coming after the Kivuitu-led 2007 polls). With the ushering in of a new constitution, a new republic was born: the second republic. There has been a lot of optimism that the new supreme law will bring about the radical change in governance that Kenyans have yearned for since independence. Here are some reasons why this belief is well founded.

To begin with, the electorate has been empowered under section 104 with the right to recall a member of parliament representing their constituency under articles 97 and 98 before the end of the term of the relevant house of parliament. This provision will encourage MPs to be accountable to their electorate because a failure to do so may result in their removal from office and their replacement with a more responsible leader. Therefore, cases of misappropriation of constituency funds or a lack of interest in the affairs of the constituency by MPs, which in the past though rampant has gone unaddressed, are likely to come to an end with the introduction of this new provision.

New measures have also been introduced where the expenditure of public funds by MPs has been checked for the benefit of the public under section 116 (3) where an act of parliament which confers a direct pecuniary interest on MPs (such as a salary/allowance increment) shall not come into force until after the next general election of members of parliament. In this way MPs are deterred from giving themselves unnecessary salary/allowance increments because they are not guaranteed of enjoying the same; should the constituents be displeased by such an act, the culpable members of parliament risk losing the chance to be re-elected to the house that would enjoy the pecuniary benefit.

Furthermore, the ordinary mwananchi now has the power to petition parliament to consider a matter within its authority, which includes the enactment, amendment or repeal of any legislation as provided under section 119 of the new constitution. This enables the citizenry to play an active role in governance by advocating for legislation which they feel would be beneficial for the nation. This may prove particularly helpful in addressing the contentious issues which arose in the course of the debate that led to the drafting of this new constitution.

The new supreme law also enhances the legislative power of parliament under section 115 (6) where a bill passed by the house shall be taken to have been assented and shall come into force as law even where the president fails to give the required consent within the stipulated period. Under the same section, sub-section (2) (b), parliament may proceed to pass a bill that has been referred back to them for consideration by the president without making the recommended amendments. This means that legislation no longer requires executive endorsement as has been the case under the previous constitution. This can be considered as a major step towards giving effect to the doctrine of separation of powers between the different arms of government.

Moreover, the new law has provided affirmative action for prospective female legislators who now have a reserved number of seats in the house under sections 97 (b) and 98 (b) to (d). This in the long run will go towards ensuring that the special plight of women, who form the majority of the citizenry, shall now be considered in legislative matters by requiring their participation in the house.   

…To be continued……