An American Solution to the Kenyan Constitutional Crisis
Wikileaks EDITORIAL (Kenya)2008-01-23
Kenya is home to more than 70 ethnic groups of different origins but with a long history of interaction. Most were already here when the colonialists arrived towards the end of the nineteenth century. In pre-colonial times, these ethnic groups all had historical connections to groups outside present-day Kenya:
The pre-colonial peoples of Kenya
The ethnic groups making up the black African population represented in Kenya fall under four main language divisions:
The Bantu
The Western Nilotes
The Eastern and Southern Nilotes
The Cushites
The groups can further be broken down into so-called tribes. Tribalism is primitive in a Globalised world and has no place in Kenya today.
The Constitution Of Kenya carries the definition of a Kenyan Citizen in Chapter V1. There is a clear definition of a KENYAN citizen and no reference whatsoever to any ethnic group. All ethnic groups are Kenyans and all are equal under the Constitution of Kenya. For Kenya’s black communities to see themselves as Kenyan, they must also learn to see the other communities as equally Kenyan too. Nonetheless sensitive issues remain, such as land and the economic, political and educational privileges historically enjoyed by certain communities.
The word democracy comes from the Greek demokratia, from demos, ‘the people,’ and kratein, ‘to rule’, and it means simply ‘rule by the people’. Democracy in its broadest sense thus means a way of governing based on people’s consent or the ‘will of the people’. It stands for the welfare of all and for the common good. The basic rules of democracy include recognition of the fact that power belongs to the citizens and the importance of achieving the following goals:
the greatest possible freedom for all;
a just society;
the same rules for all;
equality before the law;
respect for the rule of law; and
equal opportunities for all.
In a democracy, people rule themselves either directly or indirectly through their representatives. In a democracy, a high degree of political legitimacy is therefore necessary, because the electoral process periodically divides the population into ‘winners’ and ‘losers’. A successful democratic political culture implies that the losing parties and their supporters accept the judgment of the voters, and allow for the peaceful transfer of power – the concept of a ‘loyal opposition’
There are various ways in which different societies and governments seek to achieve democracy as an ideal. In some cases, people are involved directly in making decisions about public affairs. In other cases, people choose representatives to act on their behalf.
In direct democracy, the people themselves directly express their will on public issues. Direct democracy can also be described as participatory democracy as it involves all citizens in making decisions on public matters. Each person is given the opportunity to take part in making public decisions directly. People do not need to delegate that right to another person – or a representative – who represents their choices.
The best example of participatory democracy is where citizens vote in a referendum. A referendum is a direct vote by all the citizens to decide on a political matter of national importance.
For instance, a referendum can be used to decide whether to adopt or reject a new constitution, as happened in Kenya in November 2005.
Since, it is practically impossible to gather all the citizens of Kenya together to play a part of government, the function of Government must be performed by a number of individuals smaller than the totality of its citizens. An election is the chief basis of political legitimacy. The General election is the platform that we use to select a few Kenyan citizens to the National Assembly in order to represent our interests and perform the function of Government. The Members of Parliament are elected by the Kenyan citizens to watch over their interests and to, either form or check Government.
This is indirect Democracy. In indirect democracy, people elect their representatives periodically to govern on their behalf and to specifically express people’s feelings on public issues. The state in this form of democracy is not directly governed by the people themselves but by their representatives. This form of democracy is practised in the modern nation-states because they are large in area and in population. Their structures and problems are also complex and varied. It is difficult to involve everybody in such a situation.
As a form of indirect democracy, representative democracy requires individuals to elect other persons to exercise power and make decisions on their behalf. A person exercises his or her power through a representative. Kenyans elect their representatives every five years to govern on their behalf and to specifically express people’s feelings on public issues.
But, a democratic Kenya cannot survive, unless the people of Kenya feel that they can affect their system of Government and see all their preferences enacted. Nothing could be more important. Power must at all times; be exercised by the citizens of the Republic of Kenya, rather than the president!. Power can only be exercised by the citizens where the will of the people is seen to be done.
The problem with this country, lies in the fact, that we as citizens have for 43 years been elevating unqualified citizens to public office. The risks we have taken have resulted in Incompetence and Greed! We are responsible for creating a breed of Kenyan politicians who are not at all serious about the electoral process and the meaning of the phrase political accountability.
These Politicians are not only low, uncouth, immoral individuals but also clearly visionless. These people have without any regard taken away one by one, all our Individual Rights guaranteed to all Kenyans under our Constitution in the pretext of exercising our mandate.
The Constitution of Kenya under chapter V guarantees all Kenyans the Bill of Rights. NO ONE HAS THE POWER OR AUTHORITY BY LAW TO TAKE AWAY THESE RIGHTS FROM KENYANS. Any attempt to do so is unconstitutional, treasonable and punishable by death, as it amounts to a subversion of our Constitution.
The right to life,
The right to personal freedom,
Protection against slavery and forced labour,
Protection from inhuman treatment,
Protection from property being taken away illegally,
Protection against illegal search or entry,
The right to the protection of the law,
Freedom of conscience,
Freedom of expression,
Freedom of association and assembly,
Freedom of movement, and
Freedom from discrimination.
This means that all Kenyans have—
hold your own views and talk about what you think and believe,
associate and meet with others, and
move freely without hindrance.
Economic freedom
the ability to own and use property,
the chance to work and provide for your livelihood, and
freedom from forced labour and slavery.
Social freedom
the fair treatment of all citizens,
no interference with one’s body, premises or private life, and
no inhuman treatment.
In a democracy, all people are seen as having been born equal and are treated equally before the law. Democracy rejects any form of discrimination among people and provides a framework for justice, fairness and equality. Justice is a set of rules that provide each person and/or groups in society with basic rights. These include:
Human rights,
The rule of law,
Economic justice, and
Gender equity.
The current Administration is abusing these rules even though Kenya has ratified several United Nations conventions on human rights, among them:
The International Convention on Civil and Political Rights;
The International Convention on Economic, Social, and Cultural Rights;
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
The Convention on the Elimination of All Forms of Discrimination Against Women;
The Convention on the Rights of the Child.
The concept of the ‘rule of law’ is based on the idea of government by law. This means that no person is above the law. That is to say, all citizens (from the President to the lowliest Kenyan) are subject to and equal before the law. It means that no person can suffer punishment unless that person has broken the law and is rightly judged through the established judicial process. Leaders, too, must exercise their powers according to laid down law. Anybody who makes a decision must do so within the law.
For example:
The Constitution Of Kenya provides for freedom of assembly, and the government is bound by this rule. It cannot prevent a public meeting simply because it dislikes or disagrees with the views of those responsible for calling that meeting. Government officers must first obtain a court order before preventing a meeting from taking place.
The state has legitimate power to control and influence actions within its borders. The principal organs (called arms of the government) through which the government exercises its powers are:
The Legislature: that makes policies and laws and also supervises the work of the Executive;
The Executive: that carries out the policies and laws passed by the Legislature; the institution that runs the government;
The Judiciary: that interprets and applies the laws passed by the Legislature and deals with any disputes that occur within the state.
The principle of separation of powers sets limits on the work of the Judiciary, the Legislature and the Executive. It provides the checks and balances that prevent misuse of power by any of the three arms of government. The principle of separation of powers requires that:
There should be the least possible overlap in the powers and functions of the different arms of government;
There should be no overlap of staff in the different arms of government;
No arm of government should interfere with the functions and work of any of the other arms; and
No arm of government should be more powerful than any of the others.
But is this the case in Kenya today? No it is not. Why?
Corruption
Checks and balances are mechanisms to make sure that no part of the government has too much power, or goes beyond its functions, and that each arm of the government can check the misuse of power by the other arms of the government.
Examples of the checks and balances contained in the Constitution of Kenya are:
The President, as head of the executive, can reject a Bill passed by Parliament, although Parliament may override the President’s decision with a second vote.
The Judiciary can cancel laws passed by Parliament if these laws are not in line with the Constitution.
The Judiciary can cancel any action by the Executive if this action is not in line with the law or with the rules of natural justice.
The Executive has to get permission, by asking Parliament to pass the national budget, to use public money for administration.
The President cannot dismiss a judge from office unless a tribunal has been appointed to investigate and recommend an action against the judge.
The act by Kibaki to steal the election and swear himself into Office was the ultimate Act of Corruption. That of Abuse of Power for personal gain. The check for this action would have been that the Judiciary can cancel any action by the Executive if this action is not in line with the law or with the rules of natural justice. But rather than this course of action the Judiciary swore Kibaki into Office, following his illegal declaration as winner of the Presidential Election. Here the principle of separation of powers between the executive and judicial functions of the government has not been applied leaving Kenyans with very few options.
A democracy represents the ‘will of the people” We went to the polls, voted peacefully and weeks later, we still do not know who won the election. What we do know is that Kenyans are killing Kenyans, the Police are killing Kenyans, The country is on fire and our Constitutions seems to have been suspended by Kibaki who seems to be ruling by decree! We have lost every single one of our Constitutional Rights. So, What is the way forward?
We declare ourselves Independent from Constitutional office bearers who have abused the Constitution and refuse to be governed by them by cutting all ties. How?
We try going the American Way. Drafted by Thomas Jefferson between June 11 and June 28, 1776, the Declaration of Independence is at once the nation’s most cherished symbol of liberty and Jefferson’s most enduring monument. Here, in exalted and unforgettable phrases, Jefferson expressed the convictions in the minds and hearts of the American people. The political philosophy of the Declaration was not new; its ideals of individual liberty had already been expressed by John Locke and the Continental philosophers. What Jefferson did was to summarize this philosophy in “self-evident truths” and set forth a list of grievances against the King in order to justify before the world the breaking of ties between the colonies and the mother country. The American Declaration of Independence, opens with a preamble describing the document’s necessity in explaining why the colonies have overthrown their ruler and chosen to take their place as a separate nation in the world. All men are created equal and there are certain unalienable rights that governments should never violate. These rights include the right to life, liberty and the pursuit of happiness. When a government fails to protect those rights, it is not only the right, but also the duty of the people to overthrow that government. In its place, the people should establish a government that is designed to protect those rights. Governments are rarely overthrown, and should not be overthrown for trivial reasons. In this case, a long history of abuses led the colonists to overthrow a tyrannical government.
The president of Kenya, Mwai Kibaki, is guilty of very specific abuses. The President has interfered with Kenyans Constitutional rights to their Fundamental rights and for a fair judicial system. Acting with other Constitutional Office bearers (the Chief Justice, the Registrar of the High Court, the Chairman of the Electoral Commission of Kenya, the Attorney General, and the Heads of all the disciplined forces of the Republic) the President has unconstitutionally sworn himself in as President and is in office illegally. Acting with Constitutional Office bearers, the President has instituted legislation S.25A without the consent of Parliament that will affect the people of Kenya without their consent. This legislation allows appointees by the President to forgive and negotiate with individuals who have looted Kenyan tax payers money in a non transparent manner. Acting with Constitutional Officers , the President has given shoot to Kill orders against the People of Kenya to quash dissent. Acting with Constitutional Officers, the President has removed their right to judicial trial by courts, and prevented Kenyans from trading freely. Additionally, the President and the Police Commissioner are guilty of outright destruction of Kenyan life and property by their refusal to protect the Kenyan and their Fundamental rights to property and life. The president acting with Constitutional Officers has allowed foreign mercenaries to come to Kenya (some from Uganda) and threaten the security of the citizens.
The People of Kenya have tried to reach a peaceful reconciliation of these differences with the President and the constitutional offices, but are being continually ignored. International Mediators who have appealed to the President have been similarly ignored. despite their shared concern with Kenyans for their just cause. After many peaceful attempts, Kenyans have no choice but to declare independence from these Constitutional office bearers. The new nation will be called the ————and will incorporate the people driven Constitution the BOMAS DRAFT as the new Constitution of Kenya. The new government under this Constitution will reserve the right to levy war, make peace, make alliances with foreign nations, conduct trade, and do anything else that nations do.
Kibaki will have to go and will go- by whatever means necessary. Kenya will not have a Dictator. Never Again. We must restore Democracy in our Country at whatever cost. This is our Patriotic Duty that will protect Kenyan generations from Tyranny.
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