Constitution must have the people’s participation

By Timothy M Njoya

Politicians were the problem that encumbered the Bomas Constitutional Conference and the referendum on the Wako Draft. The same political class is now trying to rob the people of their divine mandate by making a constitution for them without their permission.

The Grand Coalition will be making a mistake in imposing a constitution on Kenyans in the way the British did in 1963. It was one thing for the PNU-ODM inter-party parliamentary groups to pledge to hasten the process to end post-election violence, but another to use this pledge, which was only good for the immediate conflict resolution, as a clandestine tool for usurping the sovereign rights of citizens. Kenyans should not allow parliamentarians to abuse the legislative powers given to them by the Constitution.

It is just over four years since a constitutional court, consisting of a three-judge bench, ruled on a case filed before them by myself and others, affirming the sovereignty of the people and their inalienable right to repeal the Constitution and replace it with a new one.

The ruling held that Parliament has no authority to alter the basic structure of the Constitution.

The decision on Njoya & Others-vs-Attorney-General, affirmed by the decision in PO Onyango & Others-vs-Attorney-General, confined the process and power for overhauling the Constitution in the hands of citizens through a referendum.

The decisions in the Njoya case were: The power and the right of overhauling the Constitution belongs to the people; Parliament has only the power to make amendments to it without altering its basic structure; and the National Conference which drafted the Bomas document was fundamentally flawed and lacked the people’s mandate.

It is clear from the judgement in Njoya & Others that we must have a constitution-making framework that entails a constituent assembly and a referendum. A democratic constitution (as opposed to the ones imposed on Egyptian and Sudanese citizens by military governments and the one the Kenyan Parliament want to impose on us) must be drafted by an elected organ on the basis of one-person one-vote, namely, by a constituent assembly and ratified by a referendum through universal suffrage.

How the constituency assembly shall be formed should be subjected to a plebiscite. The PO Onyango case was wrongly decided to the extent that it permitted the drafting of a constitution by institutions not established on the principle of one-person one-vote.

The institutions established by the Constitution are not barred from facilitating the making of a democratic constitution. Parliament must make laws affecting the Constituent Assembly such that its members shall cease to participate in political parties (during the constitution making process) and shall not be eligible to run for elective positions in subsequent elections.

The Constituent Assembly should be elected according to provinces, districts and special categories and have its powers and time frame confined by law.

The facilitation role is not limited to such institutions: Even international bodies like the African Union or United Nations can be invited to facilitate, that is if Kenyans prefer to have disinterested brokers.

In accordance with that constitutional judgment, there is no justification for the Coalition Government of the PNU alliance and ODM to complete constitution review without the express mandate of a constituent assembly or proceed to make a new constitution without a referendum. Kenya cannot have a legitimate, democratic and vibrant constitution through PNU and ODM, outside which there millions who do not subscribe to the membership and ideologies of the two parties.

Though we may no longer have the same vibrant movement of civil societies, faiths, opposition parties and donors to pressure the Government to follow the spirit of the Njoya case, moral integrity, public interest ought to make it seek the people’s mandate on the process and content of the new constitution.

The current Grand Coalition Government is based on the constitution-amending powers within the Section 47 of the Lancaster constitution but not on the constitution-making power of the people.

But thanks to God, at a national level, it is the most appropriate intellectual and material resource capable of facilitating constitution-making process. Its mandate starts and ends at being facilitative.

To avoid such divisive controversies on the parliamentary versus presidential systems as rent asunder the Bomas process and the referendum, these issues should be resolved separately at preliminary stage before starting the actual constitution-making process.

The issues of what system of governance is appropriate — presidential, parliamentary, mixed or other — should be resolved through a plebiscite based on one-person one vote. The plebiscite should also put into the ballot how the constituent assembly should be formed to stop the constitution-making process being hijacked by the Grand Coalition Government.

It is one thing for Members of Parliament to make the money they want with our votes but another to take away the very sovereign rights by which we become voters.