Our TREASONOUS MPs

[abdulmote]

One thing that regrettably strikes me of being a Kenyan, is that I find ourselves to be so naive, to an extent of readily turning a 'blind eye' even to the most obvious of events surrounding us, that we can readily be deeply submerged into the abyss of self destruction and foolishly so with our eyes ‘wide open’!

What I am about to state and put forth is not meant to instigate any action on the part of the readers, but rather I am aiming to state categorically how far off the mark 'we all were', and so recognize and acknowledge our alarming mistakes and undesirable passiveness. Having said that, let me clarify beforehand that I am fully conscious and aware that what is about to follow is indeed "water under the bridge" but learn we must do, lest we keep on returning to the same path time and again towards the ultimate and irreversible destruction where we shall be deservingly but sadly doomed!

What inspired me to pay specific attention to such a serious issue I have in mind, and which I emphasise that it should critically not to be left to be swept 'under the carpet’ I should admit, is the stimulating and inspiring debate I have had with Kabangoshe in the other thread where you might have been to before.

Without going into 'duplicative' details about that debate, here I just wish to make a specific recognition of the centre of our collective errors which is the subject of this topic. It follows that I would certainly urge you to pay serious attention of what I shall state herein, and take just a little time in 'adjusting your mind' that you may prepare yourself 'if you will', on how ‘you should’ deal with similar situations in a perhaps more appropriate manner when again it comes!

To take you directly to the point I should tell you that our August house has indeed committed an un-envisaged and serious offence of TREASON against the nation, and yet we appeared to have submissively taken it with our eyes closed! Yes people, TREASON is what they did. In saying that, I also do appreciate that this very subject has been visited many a times, yet I feel as if it hardly made our heart skip a bit and so respond in an appropriate shock and disbelief, accompanied with the necessary and crucial reciprocating acts, which should have specifically countered such a heinous act in total contradiction of the oath they have taken, which is to protect and uphold the supremacy of our Constitution! This fact indeed makes me feel ashamed of being Kenyan illustrating as it does, how foolish and ignorant of our own acts we can be!

Let me tell you why:

Chapter one Section 3 of our current Constitution
provides: The Constitution is the Constitution of the Republic of Kenya and shall have the force of law throughout Kenya and, subject to section 47, if any other law is inconsistent with this Constitution, this Constitutional shall prevail and the other law shall, to the extent of the inconsistency, be void. Please do pay special attention to my emphasis. Any other law which has not been introduced through the use of
Section 47 of the subject Constitution in operation, and is inconsistent with this constitution, (will) be void!

Now then, let me restate what then happened with regards to our 'honourable' members of our Parliament, and which had been a hotly debated issue and subject of the recent and controversial judicial decision just a day before, but firstly we must one make one thing clear and I know it has been said many times; Our current Constitution does not provide for its own death! Fact is nowhere in that legally supreme, consented document and sworn by our members of Parliament to be protected and upheld, did it provide for its demise! The drafters and makers of that constitution simply did not envisage a situation where the people of Kenya would want to completely replace this Constitution with a whole new another one! Never did they think that at some point the subjugated people will ever want to wrap that constitution aside and put another one instead in its place. Besides, I suppose the fabricators of that document would have thought it a weakness as well, to provide for the termination of the same if that would have meant providing an opportunity for anyone to destroy what would have acquired the unique supremacy, as well as 'designed' to protect 'some people's interests of the time!

On the other hand, what was provided wisely at least on the minimum standard, is that the said Constitution could have some of its sections altered but only by following laid down in the Sec 47 as indicated above, the results of which are immaterial here.

Now then, that is a generous provision. Section 47 did not put any limits on what can be introduced. The Parliament was given an opportunity to introduce anything they chose as an amendment to that Constitution, but only as long as the procedures as laid down in Section 47 have been followed! Some kind of ‘protection’ if you like. And what are those procedures?

Part of the Section 47 states:

Alteration of Constitution

47 —(1) Subject to this section, Parliament may alter this Constitution.

(2) A Bill for an Act of Parliament to alter this Constitution shall not be passed by the National Assembly unless it has been supported on the second and third readings by the votes of not less than sixty-five per cent of all the members of the Assembly (excluding the ex officio members).

Now just stop here and let me take you back a bit.

Chapter one Section 3 of our current Constitution provides: The Constitution is the Constitution of the Republic of Kenya and shall have the force of law throughout Kenya and, subject to section 47, if any other law is inconsistent with this Constitution, this Constitutional shall prevail and the other law shall, to the extent of the inconsistency, be void.!

Subject to Section 47! In other words, if any legislative amendments were to be introduced by MPs to the Constitution and they had not passed through the procedures as laid down in Section 47,( the powers to amend), then those amendments would be void to the extent of the inconsistency! So much for section 47.

And now going back to our subject topic, that is not what our MPs chose to do. They were not going to simply amend the Constitution. They were actually going to replace it altogether, and perhaps correctly so. The people had spoken and their views taken for further considerations and implementation.

But!

The Constitution had not provided for such an undertaking! As I had observed earlier, the Constitution did not entertain such a move. Which means in effect, unless the necessary amendments were introduced to facilitate such an undertaking, i.e., to provide for the complete demise and replacement of that document, and through the procedure as laid down and explained above, that Constitution will simply remain intact!! It will refuse to die! The Current Constitution is what is supreme and must be protected and be held to be supreme!! It cannot be simply and casually wished away, without facilitating for its removal without that being legally and constitutionally provided for as required by the same, PERIOD!

In other words, should any attempt be made which are inconsistent with the current Constitution, then that act will be in fact unconstitutional and so illegal attempt. But that is not all. What happened in fact is that an attempt had been made by our MPs to completely replace, and so technically and unconstitutionally destroy that very same supreme document which they had swore to protect and uphold!

And how did they do this?

Simply by passing an Act of Parliament, the so called 'Consensus Act', which provided for a separate set of procedures designed to do just the destruction intended, whether in goodwill as mandated by the people or not! And that is treason watu!

Why?

Because the members of Parliament had set in motion, unconstitutional acts as such, which if implemented (as in fact is happening now), will potentially result in the 'death' of our current and 'supreme' Constitution, without having followed what it had stipulated to be followed therein!

Simply put, first they should have introduced an amendment to the current Constitution through the procedure as laid down in Sec 47, which should have provided for its methodological replacement as desired, and then carry on from there, making every thing that followed constitutional. But instead, they introduced an Act (the 'Consensus Act'), which led to a series of events that are meant to eventually destroy that very same 'supreme document'! But the question now to be asked is; Can we simply and conveniently sweep every thing under the carpet as if it never happened? And say the Wako's Constitution is passed, can any one not claim correctly and legally so, that the Current Constitution did 'not die' in the first place and everything that had happened was just a ‘horrible nightmare’ on the part of all the citizens? Should that claimant then be condemned and declared wrong and treasonous, simply for following the clearly written law which is meant to be 'protected and upheld' and supreme on our land? What happened to ‘abiding by the law’ here?

But there will be others who will be quick to claim that it is the people who are supreme and so can do what they want and how they want! Surely people, is that how it should be? I say of course the people had expressed the desire to bring in a new constitution. That cannot be disputed. But again, the people did not ask the Parliament to break the very laws it is meant to 'protect and uphold'! The people did not and could not have consented to the MPs to breach the very same Constitution which has been and still is our 'supreme document'! That’s not what the people had said and wanted!?

Why?

Because the laid down procedures for undertaking such a task was put in place as a protection for the people's good. For the same then to be breached and abused, is to allow, naively and blindly so, our members of Parliament to behave unconstitutionally and illegally so! How can we forget that that level of passiveness does amount to permitting our own destruction before own very own eyes eh?


Let me stop here for now. I have got things to do!

[kichwambaya]

Abudlmote,

This is also my biggest worry and this is why Raila said the other day that he is ashamed to be serving with this bunch of men and women. Kiraitu new what to do to amend s. 47 but he did not have the votes to pass it so he decided to find away around it. That is why he came up with the referendum. He was so confident that he would get the simple majority without breaking a sweat. Kiraitu was stunned when he realied how difficult it was going to be to even get that simple majority.

When Moi decided to enshrine the "one party state" in the constitution, at least they followed the right procedure. If Kiraitu had the powers that Moi had to intimidate voters, he probably would, but he could not buy and intimidate everybody in the parliament so they decided to overthrow the constitution. These people took the oath of office to defend and uphold this constitution yet they were ready to kill it for three pieces of silver. It is treason.

We cannot move forward as a country until we put a tremendous amount of empahasis on the respect of law. If these people do not respect the constitution, which is the supreme law of the land, then how do you expect them to respect other laws of the land; the statutes, regulations or case law? This is why even the president defies court orders without blinking an eye.

The court decision which upheld this referendum and the enactment of the Wako draft gave the kind of reasoning that a bookish Coup leader would give for overthrowing a government and suspending the constitution. Most of the African coup leaders do not bother with all that mumbo jumbo so they summerize it but pretty much say the same thing, that "that the people have the right to get rid of the old oder and usher in a new order"- they then claim to be the "true" representatives of the people. The courts argument was not legal because it was as you have pointed out, the constitution was not silent on the matter but had expressly stated the procedures for amending it under S.47 to allow for its demise.

The only way to redeem our country and to overturn this precedent is for the people to vote NO, then we go back to the parliament and amend s.47, then improve upon Bomas-no time tables or dead lines but talk and negociate untill we get a constitution which can be acceptable by at least 65% of the people.

The creation of more Districts to me is actually the realization that YES will loose and they are tyring to recompose BOMAS. MKM felt that the were outnumbered at Bomas because of the MOI districts and they are trying to change that equation. I do not believe that they actually thought that giving out Districts would give them more votes. Most of the Districts were created in areas they already had the votes.

[aeichener]

Abdulmote -
Be not so obstinately blind against the obvious.

Section 47 of the present constitution is simply not applicable.
Read its text.

It
does
not
apply.

Alexander

[abdulmote]

Alex,

It would have been rather nice to have your version of counter arguments for us to read through if you have any. You need to dive deeper than that if you were to be 'unerstood'. Indeed Sec 47 may not be "applicable" as you put it, nevertheless its relevance cannot be 'ignored'!

[aeichener]

It is relevant for constitutional amendments or alterations thereof, by parliament.

It is irrelevant for constitution-giving, by the supreme constituent power.

Alexander

[abdulmote]

Alex,

I never imagined that a lawyer would find it more difficult to understand such a simple concept than a layman would.

Tell me what is consistent with the 'Consensus Act' in relation to the current Constitution? If you think that it is, would you say that it's intended outcome if and when implemeted is indeed consistent with the same? (I just wonder whether you percieve the complete replacement of the current Constitution as 'consistent' with the same as procedurally provided for through the 'Consensus Act'!).

In other words and simply put, the outcome intended via the Consensus Act is certainly inconsistent with the Constitution and this is where Sec 47 should come in but was in fact clearly and unconstitutionally disregarded contrary to the law as laid down in Ch 1 (3).

Having said that now, can you see where I am coming from? I hope you can but tell me if you just can't.