Changing the law to accommodate politicians is misguided

This past week, some people, prominently led by our clergy, have come up with yet another prescription for the political crisis facing this country.

In their opinion, our main problem is that our constitution does not provide for a soft landing for election losers, especially in the presidential race.

Their creative solution is to appeal for a review of the Constitution to provide for additional positions in the executive and in the official opposition in order to accommodate more contestants and cronies of the leading politicians.

CONSTITUTION
In other words, the ordinary Kenyan is being told that the Constitution is a tool for prominent politicians to share national resources among themselves and that, when this sharing fails, the whole country is plunged into a crisis of governance.

We are being told that the old constitutional theory that a constitution was a negotiated document regulating the relationship between the governed and the governors does not hold any more.

We are being informed that the constitution is no longer a shield protecting the citizens from their rulers, but has now become a loincloth to cover the nakedness of our politicians from our searching gaze.

GOVERNANCE
In my opinion, those calling for such a solution are sorely misguided.

They have made the wrong diagnosis of our national problem and are now prescribing a poison that will only further exacerbate it.

It is my considered view that the problem with Kenya is not a constitutional one.

It is not even a legal one. One can rightly argue that we have among the most elaborate constitutional and legal regimes governing our political systems and structures, and it would be difficult to actually improve our governance structure without recreating structures from the past that are at the heart of the present conflict.

HEALTH

In fact, if we are to perform any surgery on our very young constitution, it should be to address the conflicts in labour and in the health sector that are costing this country heavily in terms of morbidity and mortality as well as in brain drain.

The main problem with Kenya’s politics is malfunctioning institutions.

In the present crisis, the Independent Electoral and Boundaries Commission (IEBC) has struggled to demonstrate its independence, and none other than the chairman has told Kenyans that the commission is made up of political party spanner boys and girls.

Decision-making has been reduced to parroting party lines, and the commissioners have allegedly insisted on voting on even matters beyond their technical competence.

For instance, even when the chairman provided his legal opinion as the only lawyer on the commission, the other commissioners allegedly insisted on putting the matter to a vote!

IEBC
Other than open partisanship, the commission has displayed spectacular incompetence, often breaking their own regulations, Acts of Parliament and the constitutional provisions governing their core mandate.

They have presented us with fake forms from their own officers, numbers that do not add up, malfunctioning gadgets costing us a fortune, and bungling commissioners falling over themselves to contradict each other.

They have been unwilling or unable to obey court orders; they have been unnecessarily obstructive and created the impression that something untoward was happening in the commission, even when that might not have been the case.

POLITICAL CRISIS
The IEBC is a great example of how a constitutional commission should not be run, a legendary monument to incompetence that should be taught in all corporate governance classes across the country.

The lacklustre performance of the electoral commission in 2007 was partly responsible for the conflagration that followed, and this year the IEBC must accept at least some of the blame for the prevailing political crisis.

Fixing our political problems entails working towards a trustworthy custodian of electoral processes, a commission that can be trusted to deliver a free, fair and credible election.

The crisis cannot end when half our population believes that the elections were fraudulent.

This is a slippery slope that nobody should wish for, because there is no turning back once the slide begins.

Atwoli is Associate Professor and Dean, Moi University School of Medicine [email protected]