CHAPTER 12; THE EXECUTIVE: SUBJECT OF CONTENTICITY: By Mungai

According to a realistic joke that is making rounds say that expunge this chapter 12 and a lesser degree, chapter 14, and then Kenya could have a constitution without much contencity. But, this can’t be so as this is a pedestrian thinking because chapter 12 happens to be the heart and soul, backbone and bedrock of the harmonized draft constitution. This chapter happens to be where the real power rests; it’s where it’s outlined causing some disquest and fuss in various quarters.

And to the human generation, the desire for power is enormous, drives them nut and sometimes it’s beyond them as was noted by Aristotle that humans are normally political animals. This desire for power is what corrupts our leaders, makes the political elites manipulates the system of governance and to the Law givers they dispense a constitution that caters their interests irrespective of the people. To the political elites the retaination of power is the key word so that they can continue to manipulate the system to cater their favours.

For long Kenyans have been clamouring and yearning for a new constitutional dispensation for over two decades, but failure to settle the subject “The Executive” has been a major stumbling block.

With the draft constitution which was released in the public domain and the contentious subject of contencity been chapter 12- the outline of the executive and how the power will be shared out, it’s up to the Kenyans to decide. The future of the draft hinges on this chapter. It calls for soberness due to its delicateness and if we play around we might find ourselves trapped between a hard rock and a hard place if we maintain our hard line stances.

If we approach the deliberations of this chapter of the draft in a soberly, clear conscious minds, negotiate articulately, positively and avoid politicking that normally accompanies such an undertaking there might be a real hope of a new constitution seeing the light of the day. As we debate the new draft we need to delink political personalities from it, as this draft requires to be fine tuned and all contentious issues thrashed out before it is subjected to a referendum, if we are to get a good document.

To the committee of experts, it’s a milestone they have achieved after they drafted the harmonized draft constitution which they described as hybrid one. A new constitution seems inevitable if we resist the temptation and shenanigans that characterizes our political scenes.

Whatever the case Kenyans need to utilize the 30 days offered to make up their minds as positively as possible bearing in mind that there shall never be perfect constitutional proposals.

Over the years the deliverance of a new constitution had turned out to be one of the major political campaign tool used by different protagonists as they enticed the masses to win their votes. This is the compromise situation that propelled the N.A.R.C government to trounce the K.A.N.U regime after they convinced the masses that they will deliver the new constitution in 100 days.

And, to demonstrate their determination they assembled a conglomeration of people at the Bomas of Kenya to deliberate the constitution. But, at Bomas it had turned out that it was a place of settling scores as the NARC government had disintegrated due to failure of honouring of the memorandum of understanding. The Key politicians differed on the contentious issues, and thus produced separate documents popularly Bomas and Wako draft. The last one was subjected to a referendum albeit in a politically charged and polarized environment that eventually led to its resounding rejection.

But, the biggest blunder that we made as a country at that time is to draft the constitution hedged around individuals and meaningless M.O.U.s which led to the whole input we had made drained down the drain. The 2005 referendum is the one when the seed of discord and tribal animosities was planted, which polarized the country and helped the escalation of negative ethnicity which precipitated the 2007 violence’s

So on Tuesday November 17th , it might go down in history as this is the day when the committee of experts unveiled a harmonized draft constitution to the public at a ceremony marked with pomp and circumstance . The majority of Kenyans received the document with palpable relief.

But, can we attain this lifetime goal by enacting a good constitution which will be agreeable, hence serve the state and its people irrespective of their affiliation?

In my considered opinion , i think we as Kenyans we can achieve this , but the problem lies with the politicians if they assume the leading role as their throws everything into disarray .But at the moment they have resisted the temptation to jump at it as they are holding their horses . Whether it’s for a while or not we must advise them not to politicize it but deliberate, offer positive criticism and negotiate so as to settle for the best , agreeable conclusive conclusion . We must also be wary of the usual protagonists who are probably still on the drawing board conniving and conspiring to rock the boat , as usual , along narrow tribal , personal and temporal lines

And, when deliberating we must put into consideration and proper perspective chapter 12 and 14. Chapter 12 if it is not properly constituted and adjusted might create two centers of power and thus confusion, undermining and sabotages which will rule the days. We must devise and employ the “social contract “way where one person will be mandated and answerable to the Kenyan people, been guided by a well structured governing laws.

Chapter 14 which outlines the system of the devolved governments needs a bit of realignment .As we accelerate to put in place the devolved government we must be wary of the cost of maintaining such kind of government as it’s outlined . The way it is outlined is applicable to the giant economies but in our case it might be a burden to the taxpayers and strain them.

According to Mutahi Ngunyi, a political columnist with Sunday Nation, wrote that as he advised the tribal leaders, do not debate; negotiate. To debate the draft constitution is to exchange ignorance ; to negotiate is to build Kenya . Instead of exchanging in rallies, you must spend the next 30 days in boardrooms negotiating. And while at it, discuss nothing but chapter 12 of the draft. If you strike a compromise while at it, discuss nothing but chapter 12 of the draft if you strike a compromise on the Executive, the rest of the political architecture will fall in place.

He concludes that, fight for the structures that create tribal rivalry .And as you do it remember this; the draft constitution has only one chapter .Everything else is a detail. If as tribal leaders you crack the chapter on the Executive we will have a new constitution. But, can you?


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