Constitution for Prosperity: Vote YES for the 2010 Draft Constitution of Kenya

Constitution for Prosperity: Vote YES for the 2010 Draft Constitution of Kenya

Kenya has come a long way in search of a constitution. Since the clamour for multiparty in 1990s to date, efforts at a new constitution have been high on the public agenda. The nearest Kenya got to a new constitutional dispensation was in 2005 when a referendum was called but failed to pass a constitution because of the mutilations done to the draft by the Executive arm of government. This time round, the process has been fair, with political participation working side-by-side with a Committee of Experts.

The argument that the costs involved are so much that the document must just be passed does not hold water. As well, that the struggle has been too long and that patience is running out is an untenable justification. The real justification why this draft should be passed or not lies with the content. No constitution can stand the test of perfection, and thus draft is not an exception. Several interests have been aggregated, but still a section of society is crying fowl.

I have listened to the areas considered as contentious by the majority of politicians and politico-religious leaders, and have found no strong basis to oppose this draft.

Areas of contention include the abortion clause, the Kadhi Courts and the Land provisions.

Abortion

From the daft document, it is clear that abortion is not permissible. Reading Article 26 carefully and I quote,

26.     (1) every person has the right to life.

    (2) The life of a person begins at conception.

    (3) A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law.

(4) Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of     the mother is in danger, or if permitted by any other written law.

The Constitution is clear on when life begins, at conception. It is taken to be the time when the male and female gametes meet. This is the most practical definition of the beginning of life, a stage where the law has to safeguard the developing human being. The life of this substance is therefore protected by the laws of Kenya from the risk of a procured abortion. This affirms the moral standards of Kenya as an African country that upholds the dignity of individual and communal life.

From the foregoing, a pro-life person would stand in favour of the provision, including sub-section (4), which offers a parameter on what may be an exception to the general rule. It is better to loose the life of a foetus rather than loosing the life of both the mother and the foetus. The argument on the "trained health professional" to me is not tenable. It is mediocrity for someone to claim that the opinion of a messenger in a health institution is a health professional. On this, medical guidelines and ethics will be used to guide the laws related to this matter.

Land

The provision on land is another area of contention. The limitation of the total acreage to be owned by an individual has been opposed vehemently by a section of the political class. These are the people who own thousands of acres of land in a country that has squatters, for almost a half a century. It is claimed that the Kenyatta family owns half a million acres of land, equivalent to Nyanza Province of Kenya. The Moi family on the other hand owns 0.1 million acres of land. This inequitable distribution of resources could be attributed to the poor political leadership, guided by the cancer of grabiousis that has entrenched itself in the African leadership. By asking parliament to legislate on the maximum amount of land to be owned by an individual, the constitution is attempting to seal the gaps of irregularly allocated huge chunks of land to the politically correct individuals. The creation of the Land Commission would assist in policy formulation relating to land tenure in Kenya.

Article 40 forbids the state from depriving any property, including land from anybody without due compensation. Sub section 3 states that:

(3) The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the     deprivation—

        (a) Results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with         Chapter Five

Section 68 1 empowers Parliament to legislate on the amount in the category of private land. The politicisation of the provision is therefore malicious propaganda aimed at hoodwinking the Kenyan public that the articles are unfair.

Kadhis Courts

The Kadhi Courts have also raised concerns on the side of the Christian clergy.

170.     (1) There shall be a Chief Kadhi and such number, being not fewer than three, of other Kadhis as may be prescribed under an Act of     Parliament.

    (2) A person shall not be qualified to be appointed to hold or act in the office of Kadhi unless the person—

        (a) professes the Muslim religion; and

        (b) possesses such knowledge of the Muslim law applicable to any sects of Muslims as qualifies the person, in the opinion of the Judicial             Service Commission, to hold a Kadhi's court.

    (3) Parliament shall establish Kadhis' courts, each of which shall have the jurisdiction and powers conferred on it by legislation, subject to             clause     (4)115

    (4) The Chief Kadhi and the other Kadhis, or the Chief Kadhi and such of the other Kadhis (not being fewer than three in number) as may be         prescribed under an Act of Parliament, shall each be empowered to hold a Kadhi's court having jurisdiction within Kenya.

    (5) The jurisdiction of a Kadhi's court shall be limited to the determination of questions of Muslim law relating to personal status, marriage,         divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi's         courts.

Article 169 categorises the Kadhis Courts as subordinate courts within the judicial system. This means there is no conflict whatsoever of laws, or that there can be no conflict between the laws in the Kadhis courts and the secular courts. Others within this category are the magistrate's courts, court martial and any other court established by an act of Parliament, which may include a Christian court. In case any of the parties in a case is a non Muslim and therefore does not submit to the jurisdiction of the court, then the secular court would be required to consider the case.

To note is the fact that Kadhis courts have been in Kenya since independence. Since there has never been any complaint against the existence of the courts, there is no justification of denying a section of Kenyans a right they have been enjoying. The argument that we are changing the constitution and questioning areas of concern may not touch on a provision that has been serving quite harmoniously.

Should Christians need a court to consider their issues as well, then section 169 1 (d) has addressed the need. They may propose through an Act of Parliament and a court may be created for them.

These are the major areas of contention so far. On the use of language, Article 7 provides fro two official languages, English and Swahili. Non officially, the state shall promote the indigenous languages as they are an aspect of cultural heritage.

On the size of the counties and the allocation of resources, care was taken in formulating the provisions. The counties shall be getting their share of national resources on consideration of spatial and population size. The more expansive and populated a county is, the more resource allocation it benefits from the national government.

The amendment to this draft, when passed, will be easier than the current constitution. As provided for in Chapter 16, there are two ways to procure an amendment, the parliamentary initiative or the popular initiative. Either way, specific provisions to be amended, there must be a referendum. Otherwise, for the popular initiative, a simple majority in both houses of parliament passes an amendment or two-thirds if it were a parliamentary initiative.

I urge all Kenyans to be considerate in making their decision. Pass the document and use it to amend the controversial articles, through either of the two ways. With a voting population of 15 million, garnering 1 million signatures is not as herculean, because it is far less than 7%. Should the draft constitution pass without the blessings of the church, then the church would have sold its birth right and would have lost the credibility with their flock. As things stand, the mood of the people is to have a new constitutional dispensation.