Kenya: PSC draft constitution lacks adequate checks and balances on the executive; poses governance risks, abuse of power and corruption

Some of the suggestions submitted by the Parliamentary Select Committee to the Committee of Experts are in direct conflict with the will expressed by the citizens of Kenya.

Bill of Rights

The submission by the PSC seems reactionary rather than reflective on its handling of the bill of rights. Democratic governance is premised on the ability of the citizen to hold the state accountable on the use of the citizen’s entrusted power. The PSC’s recommended removal of the right of the citizen to access information held by the state seems to serve only the colonial and current non-accountable and coercive form of governance that places the government above citizen. It is a shame that despite the loss of citizens money in the ministry of education, the Kenyan citizen’s source of information on how his/her money is lost is through the benevolence of an audit report by foreign donors. TI Kenya calls on the Committee of Experts to be faithful to the responsibility entrusted upon them by Kenyans to uphold their will including that of being able to access information held by state.

Electoral system and civil strife

TI Kenya is disappointed that some of the recommendations by PSC to the Committee of Experts (CoE) are self serving to the detriment of citizens. For example, PSC recommends electoral quarters, universal suffrage and equality of votes which would lead to civil strife and majoritarianism. It is imperative that in a deeply divided and deeply unequal like society like Kenya, there is in place a mixed member representation system. This would ensure that principles and values expressed in the beginning of the harmonised draft constitution such as equality and representation of minorities and marginalised groups is upheld.

Political party financing

We are also concerned that while the PSC goes into great detail about party funding, including the percentage of national budget that has to be set aside constitutionally for political parties, it does not go into the same details about regulating political financing from other sources which has been the basis for state capture by vested interests. We urge the CoE to make disclosure by both parties and donors a constitutional imperative.

Subordination of the Senate

It is extremely worrying that while the spirit in which citizens of Kenya demanded two levels of parliament (National Assembly and Senate) was so that the two levels of parliament hold each other accountable, PSC’s submission subordinates the senate thereby limiting it to issues pertaining to county governments. We urge the CoE to ignore such self-serving recommendations. P.T.O

Expensive ventures not in the interest of the taxpayer

The PSC’s recommended increase of parliamentary seats to 349 begs rationale especially when compared to the ratio of representation in other countries in Africa. The elevation of leader of majority party to a status above that of a minister, and that of the chairman of a committee to the status of a minister is an undue burden on the taxpayer whose basis is dubious at best.

The independence of public service

In article 121(2c), the president may dismiss any state or public officer whom this constitution requires to appoint. Most of the mega scandals on corruption in Kenya are perpetrated in collusion with state and public officers appointed by the president. Most of the offending state and public officers are coerced under the threat of dismissal, demotion or transfer. We strongly urge the CoE to safeguard the principle of arms length between the civil service and executive by placing the dismissal demotion or transfer within the responsibility of independent institutions such as the police commission, public service commission etc.

Election of county governors

In the interest of holding County governor/Deputy county governor accountable to the people, they should be directly elected under universal suffrage instead of by members of the county assembly. This is because the mayor of Nairobi will also be elected through universal suffrage (article 172(2).

Transparency International is concerned by the PSC’s decision to delete the provision on criminal liability of the president and international criminal law (article 131). It’s important that Kenya shows commitment to hold its leaders accountable under the international criminal law especially given the inaction around holding perpetrators of the 2007 post election violence accountable. In addition, we are concerned that the PSC (six schedule, par 5) has replaced the CoE recommended commission on the implementation of the constitution with a select committee (Parliament) on the implementation of the constitution. Given the usual self interest among parliamentarians we fear that Parliament should not be the sole body to monitor the implementation of the new constitution.

Judiciary

A valid criticism by the PSC of the harmonised draft constitution is that it has too many independent commissions. However, this is in response to historical and continued betrayal by the three arms of government. One of the main reasons why we as Kenyans find ourselves in a protracted governance crisis is because of the inability of the current judiciary to deliver justice and hence inspire confidence among Kenyans on the supremacy of law. It is important that accountability mechanisms within the judiciary shield it from future capture by the executive. The independence and effectiveness of the Judicial Service Commission is an imperative that cannot be achieved if it is chaired by the chief justice who is appointed by the president. The judicial service commission’s independence and accountability can also not be guaranteed if its membership is restricted to judicial offices as the PSC has recommended.

Commissions and independent offices

Commissions and independent offices are arms length institutions that are supposed to hold the various arms of government accountable for their various entrusted powers. As such, their composition is imperative to their faithfulness to the will of the citizens. The Kenya Internal Security Service Commission as recommended by the PSC is composed exclusively of the security services themselves and presidential appointees. How then will they be accountable to citizens? TI urges the CoE to ensure that their composition includes statutory civilian organisations such as LSK, COTU, and Institute of Engineers etc. This type of composition should be applied across all commissions and independent offices.

The spirit in which Parliamentary Service Commissions in democratic countries exist is that of providing parliamentarians with the requisite support and resources to undertake their duty to citizens. The history of the Parliamentary Service Commission in Kenya is replete with impropriety in resource utilisation. This is because the Parliamentary Service Commission is constituted of parliamentarians without any mechanisms of accountability. Transparency International urges CoE to ensure that the commission is constituted of a majority of non-parliamentarians.

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