Kenya Socialist Web Site
HARAKATI ISSUE NO. 7 (December 1999/January 2000)
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CONSTITUTIONAL REFORM AND WHY IT IS IRRELEVANT
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The problems with the colonial and undemocratic KANU constitution are innumerable.
The document gives the President enormous powers that he routinely uses to
undermine the three major arms of the government - the Judiciary, the Executive
and the Legislature. Theoretically, the Public Service Commission, the Judicial
Service Commission and the Electoral Commission are independent. In reality,
the powers of these Commissions are controlled by the Executive, a body under
the armpit of the President who also appoints all the above Commissioners.
The bone of contention in the current dispute in the Constitutional review
process is the Constitutional Review Act which charts out how the Constitutional
Review process is to proceed. Here, we will not get into a detailed analysis
of the flaws within the Kenyan constitution. However, a few convolutions
in the document could be mentioned. At the heart of Kenya's corruption scandals
is the toothlessness of the Controller and Auditor General because top thieves
identified by this Office can only be prosecuted by the Attorney General
who is hand-picked by the President. Despite numerous amendments, openly
undemocratic sections of the constitution have remained intact. The President
cannot be impeached and even if a vote of no confidence is passed against
the government (as James Orengo, a Member of Parliament once tried), Parliament
has to be dissolved. The rigours of elections means that Parliamentarians
are averse to any moves aimed at passing a vote of no confidence in the government.
Throughout the world, elections remain the most democratic way of changing
governments. In Kenya, the President decides when elections are to be held,
hand-picks members of the Electoral Commission while he can also dissolve
Parliament at any time and call elections. During the last elections, almost
5 million youth of voting age were disenfranchised because the Constitution
gives the Office of the President powers to control registration of voters
through the issuance of ID cards. A curious aspect of the Constitutional
reform movement is the involvement of the Church, NGO's and a plethora of
elitist organisations calling themselves "stake-holders". Although workers,
the youth, peasants, students and the poor are not represented in this process
because they have no organisations to represent them, the slogan of "a people-driven
constitution" is being forced into the throats of the masses by self-seeking
opportunists who have nothing to do with the people. The context upon which
the word "people" is being used is vague because even the exploiting classes
are also "the people".
In it's current state, the Kenyan Constitution is a document constantly under
violation by KANU whenever the interests of the party are at stake. This
is because the implementation of the document rests with the ruling class
that is notorious for using police, the army and the Judiciary to violate
the rights and freedoms of Kenyans to suppress the struggle for political
change.
The constitutional reform process is irrelevant because even after it has
been reformed, the capitalist State will still be in charge of the document
which it will use to perpetuate exploitation, widen the gap between the rich
and the poor, violate the rights and freedoms of Kenyans and maintain a corrupt
ruling class in power. In the end, nothing will change. Despite the depressing
reality, there is no denial that the Constitutional reform process represents
a major step in Kenya's democratisation process. However, the pertinent issue
is that the undemocratic and colonial nature of the constitution calls for
it's total overhaul, not reform. Eight years after Kenya went multi-party,
the political crisis has deepened. Workers and the poor have arrived at the
conclusion that the opposition has no alternative to the politics of suppression
and plunder practised by KANU. In fact, at the beginning of the 90's, and
with the emergence of multi-partyism, Kenyans were confident that the opposition
was in a position to put pressure on Moi to reform the constitution, broaden
democratic rights of Kenyan citizens and transform the country. But, as time
progressed, the ability of the opposition to exert pressure on Moi to bring
about political change has turned into ashes. This situation will not change
until a revolutionary mass movement/party emerges to clarify the social and
class contradictions that have prevented the capitalist KANU State from solving
the very problems that confronts it.
A quick peep at Kenya's political balance sheet reveals that the country
has gone through two undemocratic elections without the promised reforms.
All indications are that the third multi-party elections scheduled for the
year 2002 will either be held under the same Constitution or under a KANU/NDP-supervised
constitutional reform. The latest split within the ranks of the opposition
on the question of reforms, together with the confused consciousness of the
forces involved in the process, has frustrated many workers and the poor
who had hoped that the barbarism and chaos of capitalism in Kenya could be
ended by the reformists in the opposition.
As for NDP that cooperates with KANU, the process has given Raila Odinga
(National Development Party leader whose party cooperates with KANU) another
opportunity to warn Moi that the Dictator needs him to survive the onslaught
from the opposition and to reform the constitution in a way that will suit
KANU. Odinga has been appointed the Chairman of the Parliamentary Select
Committee (PSC) that has been entrusted with the responsibility of "collecting
views" from the public before the controversial Constitutional Review Act
can be amended to open the way for the reforming of the Constitution through
Parliament.
In essence, PSC is laying the foundation for a new tug of war because Parliament
is a creation of the Constitution and therefore the institution is in no
position to reform the same document that created it. Despite this enormous
anomaly, Raila has accepted his position because on the basis of his cooperation
with KANU, he has virtually no role to play in the opposition splinter group
that has teamed up with religious and other "stake holders" to oppose KANU.
Before the constitutional reform process gained steam, Raila was on his way
to being relegated to the side-lines as both Mwai Kibaki, leader of official
opposition, entered into discussions with Moi to "break the deadlock" and
"jump-start" the whole process! In the current circumstances, KYMS is calling
for:
-lA total overhaul of the Constitution through the creation of independent
workers, students, peasant and youth organisations that will participate
in the process of overhauling the Constitution without State control or interference.
-A democratic revolution led by the working class, peasants students and
the youth as a way of empowering the oppressed in Kenya to prepare the way
for the democratic implementation of the New constitution. Because of their
political and economic interests, the ruling class will not be in a position
to implement the document in the interest of the poor.
-A replacement of the capitalist system of government with a democratic workers'
government that will eliminate imperialist interests and crash the parasitic
ruling class whose economic and political interests are the only ones currently
protected by the current colonial KANU Constitution.
-The establishment of a strong link between the need to overhaul the constitution
and the need to abolish the exploitative system of government led by the
rich. This will help demolish illusions created in the minds of workers and
the oppressed that the current capitalist opposition will transform their
poor conditions by reforming the Constitution.
Published by Kenya Socialist Democratic Alliance
(KSDA)
email: harakatips@hotmail.com
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