Evans Monari: Voting Yes for Kenya’s Constitution

monari_072710.jpgDuring my last trip to Kenya on the Georges Tadonki trial, I had the opportunity to develop an association with the lawyer Evans Monari of Daly & Figgis Advocates (photo – center), who is one of the best known business and human rights lawyers in East Africa.  Below is an article Evans has contributed for the blog, and it is a great pleasure and honor to feature these perspectives from such a unique and valuable voice from this region.


By Evans Monari

All indications point to the proposed constitution being approved by majority of the voters. And here are just ten reasons, why we in Kenya should approve the document and maybe convince the persons still opposing the document.

The national referendum for the proposed constitution is scheduled to be held on August 4, 2010. On that day, Kenyans will vote “yes” or “no” to the question “do you approve the proposed constitution?” it is provided by the Constitution of Kenya Review Act of 2008 that if more than 50% nationally and at least 25% in 5 of the 8 provinces vote “yes” the proposed constitution will be promulgated into law. There is general consensus that the country needs a new constitution, but the question is what kind of constitution does the country require to enable it grow from its current status to new realms of development in line with the developed world?

And does the proposed constitution meet this historic need? Does itaugur well with our socio-economic needs and the unstable politicalreality?

A constitution is the charter that guides the country towards thedestination it has chosen. And below are just ten of the major reasonswhy we as the people should vote ‘yes’ for the proposed draft- the draftwhich meets the needs and demands of our country. (The list is in noway exhaustive neither exclusive).

1) Strengthened Judiciary

The PC will strengthen the judiciary. The current constitution providesthat Judges of the High Court should be appointed by the President withthe consultations with the Judicial Service Commission. All the membersof the JSC are presidential appointees. And therein lies the perceptionthat some judges are appointed to further the President’s agenda. Thisis one of the main reasons that the public has lost faith in judiciary.And it is still clear to our minds that in the year 2007, the OrangeDemocratic Movement claimed that it could not go to court to challengepresidential elections since the judges were deemed to be pro-president.This lack of trust in the judiciary played a major role in fuelling andigniting the disastrous post election violence. These scenarios will beavoided once the draft constitution is enacted since chief judges(Chief Justice and Deputy Chief Justice) will be vetted by NationalAssembly. All other judges will be appointed in accordance with therecommendation by Judicial Service Commission whose composition is moredemocratic, most of the members having been vetted by Parliament. Theprocess of appointing and removing judges is more clear and definedunlike the current scenario. Apart from the usual superior courts ofrecord (High Court & Court of Appeal), a Supreme Court will beformed which will be a rung higher than the Court of Appeal. It’sinsincere of the church and the no camp to use Kadhi Courts as laid outin Article 170 to mislead some citizens. Whether the draft is rejectedor adopted, Kadhi courts will remain in our laws. The decision of JesseKamau & Others ‘invalidating’ the Kadhi Courts in the currentconstitution has not been given effect and it’s not live to theprevailing social-political situation which should always be a keyelement of decisions of such magnitude.

2) Land & Property Rights

Article 40 guarantees the right of every citizen to acquire and own landand/or property subject to limitations on non-citizens. The articlegoes further to even protect intellectual property rights (copyrights,patents and trademarks). The same article provides that such benefitsshall not accrue to illegally acquired land. Therefore, the whole ofChapter 5 on land and environment should be read in the light of article40 (which is one of the clauses which cannot be amended without areferendum). The whole of chapter five will be a big step towardsprotection of land rights and the era of illegal incisions andacquisitions should come to an end. Environmental rights are nowenshrined in the constitutional, a big step forward.

3) Lean Efficient Cabinet & Controlled Presidency

In the proposed constitution, the powers of the presidency have beendrastically reduced in comparison with the current constitution.Parliament will have more oversight in how the government is run. Thepresident will not be allowed to appoint more than 22 CabinetSecretaries (Ministers). The fact that cabinet secretaries shall not besitting members of parliament means that they will not have politicalpatronage and therefore can be hired and fired with no fear of losingpolitical patronage. This will avoid the situations in the past whereministers engaged in corruption could not be sacked since the presidentfeared losing the ministers political following. The issue of ministersclaiming that their people are being targeted whenever they are facedwith misconduct shall come to an end.

4) Reformed Attorney General’s Office

In the current setting the attorney general sits as a minister, a memberof parliament, the principal state prosecutor and the chief legaladvisor to the government, amongst other roles.

In the proposed setting, the office will be reconstituted with Directorof Public Prosecutions and the Attorney General. Occupants of bothoffices will be vetted by parliament. The DPP will, be an independentappointee with legal teeth to freely prosecute cases on behalf of thepublic. The attorney general will be reduced into a government advisoramongst other ancillary roles. This is a big step in promotinggovernance in the country.

5) Devolution

The country will have two tier devolution. The country will be dividedinto 47 counties (Schedule one). Each county will have its localgovernment with its executive. A senator from each county will form theupper house of parliament which will be referred to as senate and thelower house the national assembly. A specific allocation of funds willbe allocated to the county and the county government will use the fundsfor local development. People will have more say in how the ‘nationalcake’ is shared and how the actual subdivision at the county level willbe more democratic than what we have.

6) Legislature

Parliament will be composed of the Senate and the National Assembly.This will be a check and balance in itself since laws must be approvedby both houses. Members of Parliament will be paying taxes since theproposed constitution provides that all persons shall be liable to havetheir salaries and allowances taxed. Furthermore, members of Parliamentwill not be able to increase their salaries as and when they wish.Parliament will also be required to make laws that do not derogate fromthe constitution unlike the current situation where Section 47 givesParliament an ambiguous mandate on how far it can amend the

7) Human Rights, Abortion & International Law

The proposed bill of rights is one of the best any country can ever get.It covers not only civil political rights but also socio-economicrights and third generation rights. Right to education, food etc willsee the government being taken to courts whenever such rights areviolated. And the onus will be on the government to prove that it hastaken all the reasonable steps to provide such rights. Further thepolice powers (both literally & legally) are curtailed and courtsare required to be pro-human rights. Furthermore, this chapter cannot beamended without the approval of the people in a referendum. 

Article 2(5) and Article 2(6) imports international law to be part ofthe country’s norms. This is perfectly in order to allow the countrydevelop in line with international best practices and it simply meansthat the government will not be entering into international agreementsthat it is not willing to honour. 

Abortion is not permitted (Article 26) unless it is necessary to savethe life of the mother or allowed under any other written law. Thisprovision has been twisted on the light of Article 2(5) and 2(6) tomislead persons that abortion is allowed. This cannot be further fromthe truth. International law which will be a part of our laws recognizesthe twin doctrines of cultural relativism and universality. Culturalrelativism stipulates that local settings should be considered beforeinternational norms (being pushed by universalism) are given effect.Therefore a court of law is unlikely hold abortion legal in the proposedconstitution.

8) Citizenship, Family Rights & Marriage

The proposed constitution allows dual citizenship. This has been in theoffing for a long time. And the discriminatory provision that womencould not confer citizenship to their foreign husbands has been cured.And finally citizenship cannot be lost through marriage, which is a bigstep forward. Article 45 (1) provides that the family is the natural andfundamental unit of society. It provides that a valid marriage can onlybe between persons of opposite sex. It goes ahead to recognizecustomary marriages. This is a progressive step of embracing the commongrounds that families are essential and that our society does notrecognize homosexuality. And why are some church leaders selectivelyignoring this in their ‘no’ quest?

9) Taxation, Economic Development and Public Finance

For the first time, as laid out in Article 201, the country will haveprinciples guiding its administration of public finances. Equitableshare of national resources will be key in our country to promotebalanced growth. The public debt (which is currently spiraling out ofcontrol) will be administered more openly. Taxation & governmentexpenditure must be towards spurring economic growth. Central Bank ofKenya will be more open to scrutiny.

10) Progressive Constitution and Political Reality

Since the clamour for a new constitutional order has been ongoing forthree decades now, it’s only right for the process to come to an end.The proposed constitution is a big improvement of the current document.It is heavily borrowed from the South African Constitution (1966),Canadian Charter and the German Basic Law of 1945. It is promotingdemocracy, good governance and the rule of law. Politically, it will beunwise for the country to go to the national elections of 2012 with thecurrent constitution. The proposed constitution will promote investmentsin the country, creation of jobs (due to reduced corruption and goodbusiness atmosphere), greater freedom and general development of thecountry.