Constitutional Amendment: Replacing the Presidency with a National Governing Council
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The aim of this Petition is to push for an amendment of article 138 of the Constitution of Kenya with a view of replacing the provision for 1 president as currently envisaged with a National Governing Council. It is motivated by the desire to further decentralize the presidency and avoid the ‘winner takes all’ method that has left many feeling disenfranchised and brought so much trouble to the nation.
Although good and progressive, our constitution, the Constitution of Kenya 2010 falls in the category of nominal constitutions. Nominal constitutions are those that are incapable of full implementation despite all good intention to do so because they do not reflect the general morality and socio economic environment of our society.
Good as it is, many experts say that a good number of its provisions were copy pasted from constitutions of countries that do not share Kenya’s characteristics. This is the reason why both the citizens and the governors resist it, albeit subconsciously. For example, although devolution was meant to decentralize power and resources from the central government, Wanjiku is still deeply invested in the presidency with the assumption that close proximity to power brings with it resources, jobs and security. The country is viewed by many as a monarch with the President as a king who has power to reward his supporters. Similarly, in spite of the principles of good governance enshrined in our constitution, corruption and negative ethnicity remain rampant. Government condones and perpetrate such vices so as retain and reward the support of loyal subjects while citizens are unable to collectively exercise their constitutional duty of overall oversight when doing so threatens the close proximity to power some may feel by having one of their tribe in power. There are many more.
Unlike the West where our constitution was heavily borrowed from, our society is rural, highly stratified and agrarian. Anthropologists, constitutional lawyers and political scientists such as Francis Fukuyama, Benedict Anderson, Ashutosh Varshney and Mwangi Kaimenyi all agree that the system of government, Liberal Democracy, which our constitution contemplates, is incapable of successful application in such a society. In his book, the End of History and the Last Man, Fukuyama even claims that when it is applied in such a society, it is in fact counterproductive. In Liberal Democracy, while the majority has its way through one man one vote, the minority has its say through a public participation and human rights regime that safeguards individual freedoms. Although true on paper, this often isn’t the case in real life as our recent history has shown. The minority are often ignored, even oppressed.
In Kenya, tribes often share common origins, economic activities and the same dwelling place. This creates a strong bond among them. Tribe is thus an extension of family to which people are first loyal to before they are (loyal) to the state and the Constitution. More so, many see tribe as a way towards economic emancipation. That people are small scale farmers or with small businesses and high poverty levels leaves people ever more reliant on the tribe for support: therefore, for this reason, in addition to family loyalty, they work hard to ensure that the tribe must be in power.
Our majoritarian system in which winner takes all in a presidential elections sustains an entrenched privilege the larger communities already enjoy thanks to their number. That they will fight to keep this position (the President by rewarding support and abusing power and the citizens by protecting the president at whatever cost) leaves other communities hopeless and disenfranchised.
To cure this problem, it’s important we good people, consider expanding the presidency. The amendments I have suggested down below, at best ensure that at any given time, more regions and communities will be represented at the Governing Council and that every year, a different community shall “enjoy a president of their own” and at worst guarantee that every member of the Governing Council to take away a portion of national cake and share it with their community. The cyclic leadership it contemplates also diminishes the ability and motivation a president would have to abuse power. Lastly, with these amendments, women, the youth and persons with disabilities will be guaranteed an opportunity to run the country.
But most importantly, in view of the disturbing events that characterized the just concluded election cycle, presidential politics will be truly decentralized as the drafters of the Constitution contemplated. The inability of one region to, for whatever reason, to promptly elect their own chancellor (representative to the Governing Council) will not jeopardize the smooth running of the country or cause unrest elsewhere.
In the words of Lord Denning, one cannot transplant an English olive to Africa and expect it to thrive with the same green and foliage as it would do planted somewhere in Manchester, England. We good people are convinced that unless our electoral system is changed to reflect the reality of tribe, the country shall never know genuine tranquility because, as long as the winner takes all in a presidential election, the losing tribes will always feel left out regardless of the good qualities of the elected president.
I Shadrack Muyesu Sharu (firstname.lastname@example.org) therefore urge you to Kindly consider and adopt these amendments.
PROPOSED AMENDMENTS TO THE CONSTITUTION OF KENYA, 2010 for the Constitution of Kenya (Draft Amendment) Bill, 2017
By POPULAR INITIATIVE
We REGISTERED VOTERS and adult citizens of sound mind of the Republic of Kenya, by dint of article 1 and article 257 of the Constitution of Kenya 2010 propose
1. THAT instead of having 1 president, the Constitution of Kenya 2010 be amended to provide for a Governing Council of not more than 16 persons who for shall for all intent and purposes shall be called Chancellors.
2 THAT the Council under clause (1) shall include the following
(a) 8 persons each representing a province as they existed under the repealed constitution
(b) 1 person to represent the youth
(c) 1 person to represent persons living with disabilities and
(d) The Attorney General who shall be an ex officio member with no voting powers
(e) If the Council, after the election and nomination of the persons in clauses a, b and c, will not have the number of men or women required to be in compliance with the 2 thirds gender rule under article 27 (8) of the Constitution, the party with largest number of seats in Parliament shall, in accordance with the Constitution, nominate to the Council the additional persons required to make it so compliant
3. THAT a Chancellor in clause (2)(a) shall be elected by a simple majority of the registered voters within a province during the period of conducting a general election under art. 136 a
4. THAT a person qualifies for nomination as Chancellor if the person meets the standards set out in art. 137 of the Constitution.
5. THAT for purposes of conducting an election in clause (3) a county which falls within the boundaries of more than one province shall belong to the province in which the largest portion of its territory is situated
6. THAT Chancellors in clause 2 (b) (c) and (d) shall be nominated by the Kenya National Human Rights and Equality Commission in accordance with the Constitution
7. THAT the salary and benefits of a Chancellor be reduced to 3/5ths of the total salary and benefits of the President currently receives
8. THAT the Council shall function as follows
(a) It shall be headed by a chair and vice chair who shall be elected by the Council through a vote by the Chancellors in its 1st order of business
(b) The chair and vice chair shall be the persons who gather the most votes and the 2nd most votes in a vote under clause 8 (a) unless the person who gets the 2nd most votes is of the same gender as the person who get the most votes. In the latter case, the person who gets the most votes among-st those the opposite sex shall be elected vice chair
(c) The chair and vice chair shall for all intent and purposes be the President and Vice President of the Republic respectively and they shall hold office for 1 term of 12 months
(d) There shall also be elected a Secretary of the Council. The Secretary shall be the person who comes 3rd in a vote under clause 8 (a) or the person who is 2nd under clause 6 (b) and they shall hold office for 1 term of 12 months
(e) The Council shall execute all functions of the President except the functions under arts. 132 (1a, b and c; 3a, b and c; and 4a, b which shall be executed by the President under clause 6 (c). The Council may also establish an office in public service in accordance the recommendations of the public service commission
(f) The President shall also execute the functions under arts. 116 (1), 132 (2a, b, c, d, e, f and 4d and e) and 133 with the approval of the Council.
(g) The decisions of the Council shall be made through a vote. A simple majority means a motion wins.
(h) Decisions of the Council in execution of any functions stated herewithin shall be in writing and shall bear the seal of the Council
(i) In case of a vacancy in the office of the President for whatever reason, the vice president shall immediately assume the role of president.
(j) Quorum for the Council shall be 9 Chancellors.
(k) A member of the council shall not table a motion to impeach a Chancellor
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