Post by Onyango Oloo on Oct 19, 2005 0:28:08 GMT 3
If Wako Draft sails through, elections will be in 2010
By Kauma Mussilli (* The writer is an advocate based in Nairobi) Commentary originally published in the East African Standard, Wednesday, October 19, 2005
The Proposed Constitution does not specify the qualifications of a presidentiaI candidate and so any citizen of Kenya by birth and qualified to stand for election as an MP can vie for the presidency. There is no minimum education requirement either.
The age limit of the President is important in a republic as opposed to a monarchy. The age of a presidential candidate in all written constitutions has always been 35 years. This omission would let a son or daughter of an incumbent or retiring President take over at a tender age of 20 years or less. On the other hand, without a minimum education requirement demagogues like Hitler can easily become heads of State.
The proposed constitution does not allow a person to qualify for nomination as a presidential candidate if that person is vying for a parliamentary seat and yet if a person elected as President is an MP, the seat of that person shall be declared vacant. The only MP who is a president is Othaya MP President Mwai Kibaki. This means that after the new constitution comes into force, the Othaya seat will be declared vacant and a by-election held.
Article 152 says the President shall hold Office for a term not exceeding five years beginning from the date of assumption of office; and shall not hold office for more than two terms.
The incumbent President shall if the Yes wins promulgate this constitution on December 12, 2005. The President and the MPs then start a fresh 5-year term of Office and stay on until December, 2010 when the first general election is held under the new constitution.
To fill a vacancy in the Office of Prime Minister, the President shall propose an MP for an appointment as Prime Minister and Parliament passes the vote if supported by more than 50 per cent of all the members. If Parliament fails to confirm the appointment, the President proposes another name and where neither of the persons is confirmed, the President shall appoint a Member of Parliament as a Prime Minister. This would create a situation where the President goes for the most unlikely candidates for the first two rounds who will be rejected by Parliament before picking his friend as PM. This is the worst abuse of democracy and a outright dictatorship. It gives room for the President to pick the Leader of the Official Opposition as premier.
However, this Article on the appointment of Prime Minister and Deputy Prime Ministers shall come into operation after the first elections under this Constitution in 2010. The same applies to the Cabinet and the Government Chief whip as stipulated in Article 168 and article 288(6) 1 &.
It should be noted however that the Cabinet, the Attorney General, the Government Chief whip and all assistant minister shall commence a fresh term from December 12, if the proposed constitution sails through. The same applies for the current Parliament according to Article 288 (3) Sixth Schedule. The entire referendum as understood in the proposed constitution is actually a general election.
The Leaders should be courageous enough to tell Kenyans the truth. We shall vote Yes for continuation of the Narc Government until the year 2010. We shall go for No to terminate the next General Election scheduled for 2010 and prepare adequately for a General Election in 2007 or earlier.
If the Yes wins under the Sixth Schedule 23(1) the provincial administration shall stand dissolved leaving a huge administration vacuum.
The most alarming article is 149(4) that allows only one tribe to produce presidents because to be president one must obtain 25 per cent of votes from 38 Districts. There is only one tribe in Kenya with this number of districts.
The draft allows an incumbent President to be removed from office on grounds of incapacity through the setting up of a tribunal by the Speaker or the Chief Justice. Five doctors will have to examine the sick President and their report taken to Parliament instead of being taken to the High Court. Parliament would then need 50 per cent of all MPs to accept it; if it is not passed, the President will continue performing the functions of the office whether ill or half-dead. Why does the Wako draft place so much faith in Parliament and the office of the Attorney General? Your guess is as good as mine.
The impeachment clause is a mere necromancy. There is no way Parliament would get 75 per cent of all MPs to impeach a sitting President. In other democracies it is by way of simple majority. This Constitution is the worst in the entire civilized world.
Amendment clauses have been borrowed from Switzerland a country with nine presidents, each representing a province. They occupy the position of chairman on rotational basis. Hence the doctrine of first among equals; with groups of 9 Presidents of the same country, collection of signatures of 1,000,000 registered voters is easy.
These procedures are unworkable in a country led by a King, with a rubber stamp parliament and a toothless Attorney General.
Another absurd proposal is that the proposed constitution demands that Parliament passes some 60 Bills into law and if Parliament fails to do that, the Attorney General, in consultation with the Commission on the implementation of the Constitution, shall declare the Bills enacted. If this happens, the Country will have surrendered its sovereignty to the Attorney General as stipulated in Article 287 (4) (5).
Ministers Musikari Kombo, Simeon Nyachae and Charity Ngilu should understand this draft before they touch the Banana.
They have been promised the deputy premierships, but should remember that the positions will not be available until 2011 after the next general election when a new Cabinet with 20 per cent ministers from outside Parliament will be appointed. Politicians must be honest enough to tell Kenyans that this is a General Election. The next one will be in 2010.
By Kauma Mussilli (* The writer is an advocate based in Nairobi) Commentary originally published in the East African Standard, Wednesday, October 19, 2005
The Proposed Constitution does not specify the qualifications of a presidentiaI candidate and so any citizen of Kenya by birth and qualified to stand for election as an MP can vie for the presidency. There is no minimum education requirement either.
The age limit of the President is important in a republic as opposed to a monarchy. The age of a presidential candidate in all written constitutions has always been 35 years. This omission would let a son or daughter of an incumbent or retiring President take over at a tender age of 20 years or less. On the other hand, without a minimum education requirement demagogues like Hitler can easily become heads of State.
The proposed constitution does not allow a person to qualify for nomination as a presidential candidate if that person is vying for a parliamentary seat and yet if a person elected as President is an MP, the seat of that person shall be declared vacant. The only MP who is a president is Othaya MP President Mwai Kibaki. This means that after the new constitution comes into force, the Othaya seat will be declared vacant and a by-election held.
Article 152 says the President shall hold Office for a term not exceeding five years beginning from the date of assumption of office; and shall not hold office for more than two terms.
The incumbent President shall if the Yes wins promulgate this constitution on December 12, 2005. The President and the MPs then start a fresh 5-year term of Office and stay on until December, 2010 when the first general election is held under the new constitution.
To fill a vacancy in the Office of Prime Minister, the President shall propose an MP for an appointment as Prime Minister and Parliament passes the vote if supported by more than 50 per cent of all the members. If Parliament fails to confirm the appointment, the President proposes another name and where neither of the persons is confirmed, the President shall appoint a Member of Parliament as a Prime Minister. This would create a situation where the President goes for the most unlikely candidates for the first two rounds who will be rejected by Parliament before picking his friend as PM. This is the worst abuse of democracy and a outright dictatorship. It gives room for the President to pick the Leader of the Official Opposition as premier.
However, this Article on the appointment of Prime Minister and Deputy Prime Ministers shall come into operation after the first elections under this Constitution in 2010. The same applies to the Cabinet and the Government Chief whip as stipulated in Article 168 and article 288(6) 1 &.
It should be noted however that the Cabinet, the Attorney General, the Government Chief whip and all assistant minister shall commence a fresh term from December 12, if the proposed constitution sails through. The same applies for the current Parliament according to Article 288 (3) Sixth Schedule. The entire referendum as understood in the proposed constitution is actually a general election.
The Leaders should be courageous enough to tell Kenyans the truth. We shall vote Yes for continuation of the Narc Government until the year 2010. We shall go for No to terminate the next General Election scheduled for 2010 and prepare adequately for a General Election in 2007 or earlier.
If the Yes wins under the Sixth Schedule 23(1) the provincial administration shall stand dissolved leaving a huge administration vacuum.
The most alarming article is 149(4) that allows only one tribe to produce presidents because to be president one must obtain 25 per cent of votes from 38 Districts. There is only one tribe in Kenya with this number of districts.
The draft allows an incumbent President to be removed from office on grounds of incapacity through the setting up of a tribunal by the Speaker or the Chief Justice. Five doctors will have to examine the sick President and their report taken to Parliament instead of being taken to the High Court. Parliament would then need 50 per cent of all MPs to accept it; if it is not passed, the President will continue performing the functions of the office whether ill or half-dead. Why does the Wako draft place so much faith in Parliament and the office of the Attorney General? Your guess is as good as mine.
The impeachment clause is a mere necromancy. There is no way Parliament would get 75 per cent of all MPs to impeach a sitting President. In other democracies it is by way of simple majority. This Constitution is the worst in the entire civilized world.
Amendment clauses have been borrowed from Switzerland a country with nine presidents, each representing a province. They occupy the position of chairman on rotational basis. Hence the doctrine of first among equals; with groups of 9 Presidents of the same country, collection of signatures of 1,000,000 registered voters is easy.
These procedures are unworkable in a country led by a King, with a rubber stamp parliament and a toothless Attorney General.
Another absurd proposal is that the proposed constitution demands that Parliament passes some 60 Bills into law and if Parliament fails to do that, the Attorney General, in consultation with the Commission on the implementation of the Constitution, shall declare the Bills enacted. If this happens, the Country will have surrendered its sovereignty to the Attorney General as stipulated in Article 287 (4) (5).
Ministers Musikari Kombo, Simeon Nyachae and Charity Ngilu should understand this draft before they touch the Banana.
They have been promised the deputy premierships, but should remember that the positions will not be available until 2011 after the next general election when a new Cabinet with 20 per cent ministers from outside Parliament will be appointed. Politicians must be honest enough to tell Kenyans that this is a General Election. The next one will be in 2010.