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Kenyan constitution making parodies dstv bouquet!

Discussion in 'Jukwaa la Sheria (The Law Forum)' started by Rutashubanyuma, Oct 6, 2010.

  1. Rutashubanyuma

    Rutashubanyuma JF-Expert Member

    Oct 6, 2010
    Joined: Sep 24, 2010
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    For those familiar with DSTV bouquet subscription policy fully knows that you are given a packaged offer of variety of channels irrespective of your personal choices in a “take it or leave it” basis. Essentially DSTV rams down your throat programs you do not want to view as a sacrifice you have to endure in order to access the programs you want to watch. It is a business deal which has successfully evolved over time and is being used worldwide after the collapse of pay per view system.

    In pay per view arrangement, you only buy programs you want to watch but unfortunately you have to pay more because viewership normally pares down as it grapples to accommodate clientele rights to choose. If there are many TV Satellite and cable pay-providers and a healthy competition prevails then few complaints may germinate. In constitutional making there is totally zero competition among the providers since only the State commands the process. And, such a process is a dictatorial one which fails to serve the ends. Unfortunately, this is what Kenyan constitution making process has manifested into…parodying DSTV Bouquet!

    The political class in Kenya had tried a similar stunt in 2003 when it hijacked the constitutional making process from its rightful owners - the people of Kenya - after the House had enacted a law leading to formation of the Boma Conference only for a constitutional court -In Njoya & Others v. A.G & Others [2004] 1E.A 194 - to declare Boma a nullity because it was not Constituent Assembly elected by the people of Kenya. The constitutional court went further by clipping the wings of the House to rewrite a new constitution. The court averred the House had no such powers under the ruses of amendment clauses of section 47 of the constitution. The Kenyan political class has always mistrusted the hoi polloi from rewriting the highest law of the land because it feared the new law could threaten the nature of its perpetual survival. From that historical trepidation, the House enacted another law that empowered a committee of experts (COE) and the House to assume the powers of a Constituent Assembly something the Njoya decision had forbidden!

    The COE assumed all powers of the Boma Conference albeit with a “touch of deceit” of interacting directly with a portion of people of Kenya for the purposes of legitimizing the process. Thereafter, the COE consulted with a House Committee laden with members of the executive to seek their final input before publishing a final document which will afford every registered Kenyan a right to vote in a plebiscite! Now under the enacted law, Kenyans can vote yes or no irrespective of their ambivalences about portions of the proposed law just like purchasing a DSTV Bouquet. The ruling class is divided over how to go about the contentious issues bubbling in the document ranging from Kadhi courts, land, devolution, the structure and functions of the executive, judiciary among others. There is a minority side which feels contentious issues should be decided separately in order to vitiate a protracted court wrangles which are likely to ferociously ensue following the “yeah” acclamation. The foundling of Kenyan constitution making process percolates from the executive hijacking the process in order to suit their transient tactics of winning the 2012 election. Selfish political ends had robbed Kenyan people from enacting the law based on their long term needs.

    Since the House had no power to sit as a Constituent Assembly then it can not delegate those powers to the COE and herself. One can not delegate or assume something she never had. This was the statutory pillar of Njoya majority ruling. What is going on in Kenya is a reminder political expedience still rules but the polloi are also venting their catharsis via a lukewarm registration for a referendum.

    This reminds me of the 13th amendment of our constitution. Our executive aimed to mutilate the constitution in a manner it deems fit but sought our mandate via a “white paper” instead of enacting a Constituent Assembly and a referendum law!