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THE NEW CONSTITUTION: EUPHORIA AND REALITY

‘The anniversary of hope’ ran the front page headline of The Nation on Saturday, with a sub-headline, ‘Greater personal freedoms, gender equality and a reformist Judiciary cap a momentous 12 months’. Under a photograph of a cheering, flag-waving crowd The Nation’s caption ran, ‘The optimism was high and the hope infectious on the day these Kenyans gathered to witness the dawn of a new order at Uhuru Park last year’.

Infectious hope there was indeed one year ago when Kenya’s new constitution was promulgated and although, as The Nation described it in a double-page article by Peter Leftie, ‘the journey since August 27, 2010 has been bumpy’ there have been ‘landmark reforms’.

The Nation listed the landmark reforms and changes: ‘Unprecedented public recruitment of top government officers, reduction of Presidential powers, enhanced rights of people in remand, more women in key positions and an assertive public’.

‘One year down the road’, The Nation declared, ‘Kenyans have witnessed sweeping changes in the judiciary and the executive, including the open, transparent and competitive recruitment of the Chief Justice, the deputy CJ and the judges of the Supreme, Appeal and High Courts and the new Director of Public Prosecutions’.

That was not all wrote Peter Leftie; ‘Yesterday, Parliament held extra-ordinary sessions in the morning and afternoon in a rush to beat the one year deadline for the enactment of dozens of laws related to the constitution’. The Nation listed 27 bills with a one-year deadline.

On this latter point The Standard on Saturday was no less effusive. ‘WHAT A DAY!’ screamed its front page headline. Four Bills passed – 12 Bills in a week, five judges appointed, three nominees approved, five judges of the Supreme Court sworn in’ were just some of the accomplishments it trumpeted after ‘MPs worked ‘late into the night’.

So much for the euphoria, now surely however it is time to take the cold shower of reality.

The new constitution does provide the basis for hope but without proper implementation supported by the right spirit across society (but particularly in government and state authorities) it is just a document full of words. A realisation of the new Constitution’s limitations and weaknesses as a document is also required. The debate raging over what date the next election must be held on – August or December 2012 or even April 2013, provides just one example of many of the weaknesses of wording found in the new Constitution.

Other parts of the Constitution contain worthy sentiments and statements that are not being realised in practice. To take just one example, again from many, Article 51 entitled ‘Rights of persons detained, held in custody or imprisoned’, states under Section (2) that ‘A person who is detained or held in custody is entitled to petition for an order of habeas corpus’. Every week, however, people are still being arrested and thrown into a cell, often on spurious grounds (i.e. they wouldn’t pay the necessary bribe’) and held without charge, or given the opportunity to inform relatives, friends or a lawyer of their whereabouts or situation. The same is true, week in week out, in Nairobi City Council’s cells.

Two other examples of changes made to Kenyan life in the last 12 months would seem to suggest that the rights and freedoms supposedly enshrined within the new Constitution are being ignored, perhaps not understood, or quite possibly were never read properly in the first place.

Article 31 entitled ‘Privacy’, states that ‘Every person has the right to privacy, which includes the right not to have – ‘information relating to their family or private affairs (Section (c)) or, ‘the privacy of their communications infringed’. However, Kenyans now have to register their mobile phone numbers (hardly what you’d call ‘privacy’) and all people leaving Jomo Kenyatta International Airport now have to submit to having their fingerprints taken even though they have not been charged of any offence under the laws of the Republic of Kenya.

As for patting our legislators on the back for passing so many Bills and confirming so many appointments, remember it is an old maxim that hurried legislation invariably results in poor law. This constitution more than most requires well thought out, tightly and precisely worded legislation for its noble sentiments to be realised in fact

THE NEW CONSTITUTION: A LESSON FROM HISTORY

Seventy-five years ago a new constitution came into force in a country far from Kenya. Under Section X of that constitution, entitled ‘Fundamental Rights and Duties of Citizens’, the said citizens were granted rights that included ‘Freedom of religious worship’, ‘Freedom of speech and ‘Freedom of the press’. They were ‘guaranteed inviolability of the person’, the ‘inviolability’ of their homes, and assured that ‘privacy of correspondence shall be protected by law’. ‘Equality of rights of citizens’ was also guaranteed ‘irrespective of their nationality or race’.

These fine words setting out just some of the freedoms and rights guaranteed to citizens were set out in ‘The Constitution (Fundamental Law) of the Union of Soviet Socialist Republics 1936’. At that time the U.S.S.R.’s leader was Josef Stalin.

Under Stalin’s communist dictatorship, whilst the 1936 Constitution was supposedly in force, it is estimated that at least 20 million Soviet citizens were executed without due process, or deported to their deaths. Churches were burnt, priests arrested, the press strictly controlled, phones tapped, rooms bugged, Jews persecuted and other nationalities deported en masse to frozen wastelands where many died. The knock on the door in the middle of the night as the secret police took away their victims made a macabre nonsense of constitutional guarantees to the ‘inviolability’ of person or property.

The 1936 Soviet Constitution provides an admittedly extreme example of where a constitution can be just meaningless words on a piece of paper but for thinking Kenyans it should be a salutary warning nonetheless.

Zimbabwe military press conference

Raila Odinga Speech at the CSIS Washington DC, USA

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