07/18/2007
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Hon. Raila Odinga's Statement on Minimum Reforms.
From: David Opon
By Hon Raila Odinga, July 16, 2007
In August last year, I instituted the debate on minimum reforms with a statement on the independence of the Electoral Commission and presidential appointments thereto.
I followed this up in the ensuing months with further detailed statements on the minimum reforms that were required to ensure a level playing field for the forthcoming general election.
The Government did not respond until it was forced to bow to pressure mounted by the Muungana wa Katiba movement.
The government eventually had to back down and agree to the establishment of an inter-parties parliamentary group, chaired by the vice-president, to look at the issue.
That team has already prepared a draft Bill, which has been forwarded to the attorney-general to be published.
That Bill deals with:
1. the entrenchment of the constitutional review process in the Constitution;
2. the independence of parliament from the executive, particularly regarding the parliamentary calendar;
3. the transfer of power from one executive to the next;
4. constitutional provision for referenda;
5. dual citizenship and the right to citizenship of spouses of Kenya citizens.
It is instructive that, last week, the president, while in Nakuru, made a unilateral statement to the effect that elections will be held in December this year - taking advantage of the current Constitution, which gives the president the power to prorogue and dissolve parliament, and therefore to control the parliamentary calendar to the government's maximum advantage.
This is in spite of the fact that the president is a player and competitor in the same elections, and that this is therefore contrary to the laws of natural justice.
Phase two of the recommendations, which is still being prepared by the committee for inclusion in a second Bill, includes:
1. the independence of the Electoral Commission;
2. the independence of the judiciary;
3. provision for parliamentary vetting of key public sector appointments;
4. election of the president by a simple majority of 50 per cent plus one vote;
5. measures to prevent unilateral poaching of MPs into government from opposition political parties;
6. provision for the direct election of mayors and county council chairs;
7. increasing the number of parliamentary constituencies, and affirmative action.
The need for the introduction of these minimum constitutional reforms remains imperative as the next general election approaches.
It has, however, come to our notice that a meeting was held at State House last Tuesday, chaired by the president and attended by the vice-president, the minister for legal and constitutional affairs and all other members of the Government of National Unity who are members of the parliamentary select committee on reforms.
At the meeting, it was resolved that there will be no minimum reforms before the general election is held - except for an increase in the number of parliamentary constituencies.
On the matter of parliamentary constituencies, I would like to quote the remarks of the Speaker in the House on April 4 this year.
He said:
"In the interest of the nation and this House, I want to read Section 42 of the Constitution. I read it the way I feel because what I seem to be gathering is that some Hon. Members think, or probably plan, to go outside the Constitution to create constituencies.
I think you will remember that, last year, we tried to guide this House and Members in general about the need to amend Section 47 of the constitution to give birth to a new Constitution. I am glad I am looking now at the Order Paper and that has been realised. An amendment to the Constitution is being proposed."
Section 42 of the Constitution reads as follows:
'Subject to this Section, that is, this Section of this Constitution, Kenya shall be divided into such number of constituencies, having such boundaries and names as may be prescribed by order made by the Electoral Commission.
'(2) Parliament may prescribe the minimum number of constituencies into which Kenya shall be divided, which shall not be less than 188 or the maximum number of constituencies, which shall not exceed the minimum number by, at least, 20 and, until Parliament has so prescribed those numbers in accordance with that Section, the minimum number of constituencies shall be 188 and the maximum shall be 210.'"
So, to be able to go anywhere beyond 210 constituencies, you must amend Section 42 of the Constitution.
That is the law.
As far as I can gather, there are, maybe, some Hon. Members who are planning to go outside this Section.
I think they had better be served with this notice: It will not happen!
So, the Constitution says there must be a minimum of 188 constituencies and a maximum of 210, which is what we currently have.
It appears the government wants to change this by a simple Act of Parliament.
The Constitution is very clear on the subject, however.
There can be no increase in the number of constituencies without an amendment to the Constitution.
A Parliamentary Group meeting of the GNU has been convened for tomorrow.
We are fully aware that the proposed list of new constituencies is designed only to facilitate gerrymandering by the government in order to confer a numerical advantage to that side and therefore to make even more uneven the playing field on which the general election will be conducted.
Whereas we are not opposed in principal to increasing the number of constituencies, it is a cynical, arrogant and opportunistic act on the part of the government to attempt to cherry-pick constituencies that can assist them.
We therefore propose two measures:
1. We urge the vice-chairman of the Parliamentary Service commission, Hon. Peter Oloo Aringo, to convene a Members' kamukunji for next Tuesday, so that Members can discuss this critical issue and take a stand.
2. Parliament is now moving towards the end of its life and has before it the Finance and Appropriations Bill. We urge Members to ensure that this should not be debated and approved before the Bills on the minimum constitutional reforms have been published, debated and approved by the House.
RAILA ODINGA
MP, Langata Constituency, ODM-Kenya
July 16, 2007
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