Let vot­ers have a say in nom­i­na­tion of MPS

Daily Nation (Kenya) - - SUNDAY REVIEW -

One of the re­quire­ments in the 2010 Con­sti­tu­tion was for Par­lia­ment to give ef­fect to Ar­ti­cle 81(b) that “no more than two-thirds of mem­bers of elec­tive pub­lic bod­ies shall be of the same gen­der”. The High Court in 2017 un­der a pe­ti­tion filed by the Cen­tre for Rights, Ed­u­ca­tion and Aware­ness or­dered Par­lia­ment and the At­tor­ney Gen­eral to take steps to im­ple­ment the con­sti­tu­tional re­quire­ment within 60 days. The dead­line lapsed on June 29, 2017 be­fore this was met.

In 2015, an amend­ment was pub­lished by the Jus­tice and Le­gal Af­fairs Com­mit­tee of the Na­tional Assem­bly propos­ing changes to var­i­ous rel­e­vant laws but this failed to meet the two-thirds ma­jor­ity vote thresh­old in Par­lia­ment. Fast for­ward to this year and pub­li­ca­tion of the Con­sti­tu­tion of Kenya (Amend­ment) Bill 2018. It was hoped that this time round, given the near unan­i­mous en­dorse­ment by top po­lit­i­cal lead­ers, the bill would pass when brought back to Par­lia­ment

Un­for­tu­nately this did not hap­pen. Nev­er­the­less, we should note a few facts. The con­tem­plated Ar­ti­cle 97 (A1) in­ser­tion says a per­son elected to Par­lia­ment or County Assem­bly un­der Ar­ti­cle 97(1) shall be el­i­gi­ble for re­elec­tion for one fi­nal term. This, how­ever, does not ac­cord with the Con­sti­tu­tion as it seems to re­fer to nom­i­nated MPS while in re­al­ity, it refers to the elected MPS. I am not sure if MPS have taken cog­ni­sance — that they are el­i­gi­ble for re-elec­tion for only one fi­nal term! This is be­cause cur­rently Ar­ti­cles 97(c) and 98(b)(c)(d) make ref­er­ence to nom­i­nated MPS who seem to be the tar­get of the pro­posed Ar­ti­cle 97 (1A).

One im­por­tant as­pect of the Con­sti­tu­tion that has been over­looked is Ar­ti­cle 38 which pro­vides that ev­ery cit­i­zen is free to make po­lit­i­cal choices, in­clud­ing the right “to be a can­di­date for a po­lit­i­cal of­fice, or of­fice within a po­lit­i­cal party of which the cit­i­zen is a mem­ber and if elected, to hold of­fice.” There­fore, when MPS view the im­ple­men­ta­tion of Ar­ti­cle 81(b) they need to make sure that Ar­ti­cle 38(a), which the drafters de­lib­er­ately im­ported from Chap­ter 4 of the Bill of Rights, is given due re­gard.

More im­por­tantly, it is clas­si­fied as a right un­der the fun­da­men­tal free­doms that must not be lost to pro­po­nents of the two-thirds gen­der rule. Firstly, that Cit­i­zen Ex­er­cise Sov­er­eign Rights, are not granted or taken away from an in­di­vid­ual by the State, mean­ing vot­ers have a right to elect their rep­re­sen­ta­tives.

The fun­da­men­tal ques­tion there­fore is: Are nom­i­na­tions as pro­posed in the amend­ment equated to elec­tions? Se­condly, why should the po­lit­i­cal party be the one to nom­i­nate the MPS? At what point is the ci­ti­zens’ sov­er­eign right to elect trans­ferred to party over­lords? Fur­ther, un­der Chap­ter 16, Ar­ti­cle 38 falls within the Bill of Rights and hence any amend­ment touch­ing on it must be ap­proved through a ref­er­en­dum.

This is con­trary to the re­port pub­lished by the Chair­per­son of De­part­men­tal Com­mit­tee on Jus­tice and Le­gal Af­fairs which states “pur­suant to the com­mu­ni­ca­tion by Hon Speaker on Au­gust 2015

(on whether the Bills to amend the Con­sti­tu­tion may be amended by the House) the Speaker guides that no amend­ment could be pro­posed in re­gards to a bill to amend this (un­less there is any­thing ex­tra­or­di­nary in the pro­posed bill that will re­quire ap­pli­ca­tion of the ex­tra or­di­nary mea­sures).’

It is cru­cial for Par­lia­ment to be aware that de­spite the pos­si­bil­ity of pass­ing the pro­posed amend­ments, the Pres­i­dent can in­voke Ar­ti­cle

256 5 (1A) which re­quires him to for­ward the bill to the In­de­pen­dent Elec­toral and Bound­aries Com­mis­sion to con­duct within 90 days a ref­er­en­dum for the ap­proval of the bill con­sis­tent with Ar­ti­cle 255(2). So much sovereignty of the peo­ple is lost when nom­i­na­tion to Par­lia­ment of so many mem­bers is left to po­lit­i­cal lead­ers.

Tech­ni­cally, out of elected MPS in 290 con­stituen­cies, there is a pos­si­bil­ity of one-third, to­talling

87, be­ing nom­i­nated. To whom do they owe loy­alty? This needs to be ad­dressed in view of the po­ten­tial com­pro­mises to the very essence of demo­cratic prin­ci­ples and also be­cause of pub­lic re­sources at stake

There­fore, de­spite the no­bil­ity of the pro­posed amend­ment to com­ply with the Con­sti­tu­tion, it is im­per­a­tive that to­tal def­er­ence to the spirit of the Con­sti­tu­tion and sovereignty of the peo­ple be re­flected upon.

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