15 Nov 2005

The $20 Million Comma

With just a week to go to the national referendum of the new Constitution, Kenya has already had a near dozen deaths and countless violent skirmishes between the "No" and "Yes" camps.

The proposed constitution has a mixure of good and bad proposals. Sadly, it was drafted mostly by social activists and lawyers - a combination as incomprehensible as that of the French revolutionary consititution, when journalists and lawyers got together. We all know that result.

The second problem is that it is almost impossible to amend. It's a complex, tediously long and often contradictory document that will need exactly that. In trying to please everyone, the 2005 Draft has ended up fatally confusing the slim principles of national guidance that a consitution should be, with the fat layers of shifting,flexible laws that Parliaments should produce. If lawyers can't agree on it at this stage, what hope has the ordinary citizen to grasp it tomorrow?

The famed US constitution, considered the world's most perfect model, is but a few pages long, of scant clauses and sections. In reality these have required an average of one amendment for every 15 years of it's long existance.

One must shudder to think at the future revisions neccessary in the 290 chapters and over 1000 sub-sections of dense double-legalese that is the huge 2005 Kenya draft.

To change even a comma after voting day will require a petition of a million signatures, as verified by the Electoral Commission, 66% of the new "District Assemblies" which are set to number over 70, followed by 66% of all MPs, who may double from there present number (nobody knows or can tell from the draft).

And that's just to get the change onto a ballot! The whole process then has to pass a full national referendum, just like the one that has killed many people and cost millions of dollars to date.

This blind rigidity is the single most compelling reason why the new constitution may fail to pass. It will require dozens of future and immediate amendments; none are practically or cheaply possible.

The elitist lawyers, social activists, foreign-funded NGOs, ivory-towered professors, political retreads and professional nit pickers who wrote this document have feathered themselves a very fine nest - or else filled for each other a barrel full of the choicest pork. The taxpayers of Kenya will be funding their endless squabbling over this monstrously complex document for the next century - if our economy can survive that long.

Pity poor Kenya, 134th on the list of rich countries, having it's ordinary citizens pay for this immense edifice of much more government, on a per capita income of a few hundred dollars per annum and declining steadily.

Since most Kenyans agree on the need to entrench anti-corruption, land reform, freedom of information, citizenship amendments, environmental protection, reduced Presidential powers and the rights of people as outlined in some sensible sections of the draft document, it should be easy to muster 65% of MPs to rapidly amend the old Consitution in these progressive ways. That is only possible if the electorate throws out the bloated draft on November 21st.


Deno said...

Hey hope you voted!

great blog btw...Ive added you to Nchi Yetu Daily, an intersting way of keeping track of Kenyan blogs. Hope u dont mind the audience!

Nairobian said...

there, you got your answer, the wananchi voted no to the new constition and Kibaki has dissolved cabinet...despite the orange win, do you think the country is going bananas?