Post by Onyango Oloo on Oct 2, 2005 1:13:23 GMT 3
From the Sunday Nation of 10/2/2005
Justice and Constitutional Affairs minister KIRAITU MURUNGI addressed the Law Society of Kenya Monthly Luncheon on Thursday. Excerpts:
On November 21, this year, Kenyans will decide whether they want to live under the current Constitution or under a new Constitution. The LSK has a statutory duty to assist the public in all matters touching, ancillary or incidental, on the law. The Constitution is the most fundamental of all laws. The LSK is expected to provide direction, as it has done before, on how best Kenyans can consolidate the gains they have made over the years in institutionalising the culture of human rights, democracy and the rule of law.
The role played by lawyers in the second liberation cannot be overemphasized. The struggle for multi-party democracy was spearheaded by the LSK. Many lawyers paid dearly through detention without trial, torture, ruined professional careers, denial of parastatal work and forced exile.
The names of Dr John Khaminwa, Dr Gibson Kamau Kuria, Dr Willy Mutunga, Prof Kivutha Kibwana, Maina Kiai, John Gupta Thiongo, Gitobu Imanyara, Mirugi Kariuki, Martha Karua, Japheth Shamalla and many others come to mind. The detentions of Gibson Kamau Kuria, John Khaminwa and Mohammed Ibrahim (now Justice) for representing unpopular clients will remain one of the darkest moments of our justice system.
The clamour for a new Constitution was born out of these painful moments.
The new Constitution will bring the most fundamental changes in this country since independence. It will transform our political, social and economic landscape forever. Let us focus on the big picture. This is not the time to fight over commas and full stops.
The following are the main features of the new Constitution:
a) It drastically reduces the powers of the President. It makes the President accountable to the people by requiring that all important appointments be approved by Parliament; it removes Presidential control of Parliament. The President cannot prorogue or dissolve Parliament; it creates independent commissions to check executive authority. It makes it possible to impeach the President for breaches of the Constitution or the law.
Most progressive
It takes away the President's power to allocate land. The President has no power to appoint or dismiss the Vice President. The President cannot detain any person without trial.
b) It has a most modern Bill of Rights which is a complete departure from the current 'Bill of Exceptions'. The Bill of Rights is the most progressive in Africa today.
c) It is also very gender sensitive. It lays great emphasis on the rights of women. It provides that women can confer citizenship on their children, that at least a third of parliament shall be women; that women can inherit property including land; and that all laws and customary practices which discriminate against women shall be null and void.
d) It provides for a strong, independent and clean judiciary. Judges will now be appointed after approval by parliament on the recommendation of the judicial Service Commission. The JSC will be expanded to include representation of LSK. This is what LSK has been fighting for, for many years.
e) It devolves power by creating for the first time in our history a district level Government with both legislative and executive powers. The districts have extensive taxation powers to ensure their financial viability.
f) It protects freedom of worship. It honours every faith equally and allows each of them equal facilities and opportunities.
All the democratic values of constitutionalism, human rights and social justice which LSK has been fighting for the last two decades are contained in the new constitution. It is an excellent document.
One of the reasons why Kenyans overwhelmingly voted Kanu out of power is that it had cheated them on the delivery of a new constitution for over 10 years. One of the key pledges of Narc was the delivery of a new constitution. The Government is committed to the delivery of this promise.
We intend to facilitate a free and fair referendum. We shall continue to use state resources to create awareness for the new Constitution.
Contrary to the impressions falsely created in the media, we shall not use state resources to bribe voters or intimidate those opposed to the new Constitution. The days of voter bribery and coercion are gone. We have clearly stated that all resources used will have been properly authorised under our financial regulations and will be duly accounted for. We are going to fund the processes transparently and that is why we have come out openly and stated that public resources will be used and public servants will facilitate the process where necessary. We have not stated that public servants will be forced to vote for the draft. They will be free to vote as they wish. The President has been very categoric on the freedom of Kenyans to vote according to their conscience.
There are many lies being told about the new Constitution. These lies include that the new Constitution:
i) Allows devil worship.
ii) Allows abortion.
iii) Allows same sex marriage.
iv) Requires all married women to go back to their fathers and inherit property from them.
v) Transfers control of national parks and trust lands from local communities to the central government.
vi) Does not allow land to be sub-divided below two acres.
vii) Will lead to sacking on chiefs and district officers.
viii) Promotes ethnicity, tribal hatred, and is a recipe for chaos and bloodshed.
Time has come for us to expose these lies. As professionals, it is your duty to rise above sectarian, political and ethnic parochialism and pettiness. We must tell Kenyans the truth about the new constitution. The LSK has always been known for its firm, loud and fearless support for democratic change in this country. It has always been looked upon for leadership and guidance on matters of the law and the constitution. It cannot therefore be neutral or non-committal in this debate. Kenyans are waiting for your voice.
Are you for the old constitution or the new one? That is the Question.