In Summary
  • Renowned constitutional lawyer Nzamba Kitonga said time is ripe for review of the 2010 Constitution.

  • Another legal expert, Bobby Mkangi, said the committee never anticipated that both levels of governments would be wasteful in mismanaging public resources.
  • Mr Mkangi said the whole system of government is complex and expensive and therefore should be reviewed to eliminate duplication of public service roles.

The fresh clamour for the review of the Constitution being pushed by opposition leader Raila Odinga is gaining momentum after Constitutional experts concurred on the need to correct certain fundamental gaps.

Renowned constitutional lawyer Nzamba Kitonga said time is ripe for review of the 2010 Constitution to address what he termed as matters arising, which had been identified during the eight years of implementing the document.

Mr Kitonga, the former chairman of the defunct Committee of Experts which drafted the Constitution, said large sections of the country feel excluded from governance of the country, and therefore a review is appropriate to address such gaps.

SMALL GAPS

“As the committee of experts, we envisaged that a review of the Constitution will be done after a period of seven to 10 years, when the challenges of the new laws are experienced and identified by Kenyans,” the senior counsel said.

During an interview with Nation, Mr Kitonga said the current structure of the three arms of government — the executive, legislature and Judiciary — needs slight adjustments to address political inclusivity and negative ethnicity, reduce public wage bill and make the judicial system more effective.

He said the Constitution was generally good and progressive, but it had certain small gaps which needed to be improved to make it ideal for Kenya.

HYBRID SYSTEM

He said the presidential system of government adopted in Naivasha during the final phase of review process is a winner take it all model that has proved unworkable in Kenya because it excludes most communities in governance.

“The draft that the Committee of Experts came up with was a hybrid system that was both presidential and parliamentary to accommodate the opposition parties and make our politics less contentious,” he said.

The version we have, he added, is heavily watered down by politicians to provide for a pure presidential system which Kenyans rejected during the long and tedious constitutional review process.

“We had provided for a full pledged constitutional office for the leader of official opposition sitting in Parliament, which was removed, making a large sections of Kenyans to feel excluded from governance when they lose elections,” he said. On Judiciary, Mr Kitonga argued that the Judicial Service Commission should be composed of retired judges and senior lawyers as opposed to the current situation where recruitment and discipline of judicial staff is handled by serving judges and magistrates.

VESTED INTERESTS

“Ours is not an ideal model, it breeds suspicion and unfairness because a judge cannot get fair trial in a tribunal that consists of people  with vested interests,” he said.

Another legal expert, Mr Bobby Mkangi, who served with Mr Kitonga in the review panel, said the committee never anticipated that both levels of governments and their respective assemblies would be wasteful in mismanaging public resources. Mr Mkangi said the whole system of government is complex and expensive and therefore should be reviewed to eliminate duplication of public service roles in counties and national government, make it more effective and less bureaucratic.

“The country now has a reduced Cabinet where the Constitution provides a minimum of 12 and a maximum of 24 Cabinet secretaries as opposed to the previous 80 plus ministers and their assistants but our county and national assemblies are still bloated” he said.

DEVOLVED UNITS

He said they never envisaged that the Independent Elections and Boundaries Commission will create a huge number of constituencies and wards, saying that can be addressed by amending the Elections Act.

There have been concerns over the two sizes of parliament and the cost of running the devolved units with some politicians calling for scrapping of the senate and reduction of counties.

In 2014, Parliament recently rejected a motion by former Mwingi central MP Joe Mutambu seeking to reduce the number of counties from the current 47 to 10, citing costs of running the devolved units.

Uasin Gishu County MP Gladys Boss Shollei has drafted a Constitutional Amendment Bill seeking to scrap the Woman Representative seat and increase the number of women to Parliament through election — not party nomination.

RESTRUCTURE

The bill, which was tabled in Parliament last week, proposes the pairing of constituencies to form one constituency that will be reserved solely for women. The existing constituencies will be vied for by both genders.

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