RIPENSANDOCI

KENYAN CONSTITUTIONAL PROBLEMS. PART 2

Germany and Italy, at the end of the 2^nd World War, re-established a democratic government after being under dictatorships for many years. Obviously, the new states inherited a lot of laws passed during the dictatorship years which were not tolerable under the re-established democracy. So, one of the first steps in both countries was to establish, as mandated by the Constitution, a Constitutional Court of highly competent judges ⁽*⁾. Anybody on trial because of a law made by the Nazis or by the Fascists, that appears to be unconstitutional, has the right to ask for a temporary suspension of his trial, pending a request for an opinion of the Constitutional Court and, when the Constitutional Court declares the law under which the citizen is prosecuted to be unconstitutional, the accused is immediately acquitted and the relevant law becomes ope legis null and void and is cancelled from the Code. In a short time, all the pre-existing anti-democratic laws were killed.

This is the same situation in which colonies found themselves at the moment of acquiring their independence. Of course, a colonial ruler did not want problems and made therefore laws stating, for example, that a party must be registered, that a political rally must be licensed and that newspapers or magazines must receive a permission from the executive before starting publication and all sorts of activities, trades and professions need to renew an annual licence. Now, these rules infringe congenital rights, which belong to a citizen as birth rights and are not granted from above: the freedom of association, the freedom of speech, the right to have a free press, the right to freely practise one’s profession or trade and, if we had in Kenya such a Constitutional Court, these liberticidal laws would have disappeared since long time. (About the press, there is in European countries run under the Roman law a Registry of magazines and newspapers, usually kept by the Judiciary. If one wants to publish a newspaper, one has to inform this Registry about the date when one starts publishing, the name of the responsible editor and the name of the paper. The Registrar of the Press, before entering the information into the public Registry of the Press, can only object to the chosen name and write to the perspective publisher “Sorry, Sir! You cannot publish in Nairobi a newspaper called ‘The Standard’ because this name is already used by an existing newspaper. Please choose a different name”). Of course a party does not need any permission or any licence to start functioning nor a professional needs to renew his licence to practise every year, once he has passed all his state exams to acqire the right to practice his/her profession!

The Constitutional Court is also competent to ruling on contro­versial issues that might arise between ministries and between the central and the regional governments and on the constitutionality of new laws approved by the Parliament. Its powers are limited only by the Constitution! For example, the present Prime Minister of Italy, Berlusconi, using his majority in both chambers of the Parliament, had a law passed recently, according to which a Prime Minister cannot be prosecuted while in office. This law survived just one week and was duly and timely killed by a sentence of the Constitutional Court that found it contrary to the Constitution, which states that everybody, without exception, is equal in front of the law.

Another basic rule is that nobody can be removed from his natural judge, a concept totally alien to the Anglo-Saxon juridical culture! What is my natural judge? If I commit a felony for which the Nairobi Court has the territorial competence to try me, I have to be tried by the judge of this Court that was on duty at the very moment in which my case became a case and nobody can appoint special courts or commissions of judiciary enquires! Either you prosecute me or you shut up! Of course, the same applies to the prosecution! This principle makes impossible for anybody the sad and disgusting show we saw in the USA, when a special prosecutor was appointed just to serve political interests to prosecute Clinton and in Kenya, to bother Njonjo.

It is fashionable and probably justified now to attack the Kenyan establishment because of corruption, but when this criticism comes from the British High Commissioner it cannot be tolerated at all, because this institutional corruption is a direct and obligatory consequence of the idiotic principles laid down by the Lancaster House constitution imposed on Kenya at independence! If you give to a country becoming independent after being a colony and therefore without any previous experience in self government, a constitution that puts the head of state above the law, that does not consider the prosecution as compulsory and that establishes an attorney general with the power to stop any prosecution, one secures to politicians an unlimited impunity and creates the most effective school of corruption that can be imagined!

Another issue that is usually overseen by scholars educated within the Anglo-Saxon juridical culture is the electoral system. Everybody believes that the United Kingdom is an old democracy, but this is absolutely wrong! England started resembling a real democracy only 30 years ago, when the Labour party changed the electoral system, because till that date, there were electoral constituencies in northern Scotland, where aristocrats and bourgeoisie were at home, that used to send an MP to the Commons with just 12 votes, while in Birmingham, where most of the electors belong to the working classes, 300,000 votes were needed to send one MP to the House of Commons! In this frame of mind, everybody accepts as democratic the system of election they have in UK and we have in Kenya, without remarking how much it leaves to be desired. It has been several time published by the press that, after a general election in UK, the opposition polled actually more individual votes than the majority, but received less MPs because of the faults inherent in the used system and in a clever carving of the constituencies, because surely a clever executive can carve constituencies to the exclusive benefit of a particular party or a group of parties. The only 100% democratic way of electing MPs is the so called pure proportional system, in which the elector votes in the same ballot paper first for a party, by making a cross on the symbol of the chosen party (in Italy it is called voto di lista or party vote) and, after it, if he/she wants, a limited number of names chosen among the list of candidates proposed by that party can be indicated either by writing the names of by writing the individual number under which the preferred candidate is listed in the official party list of candidates (in Italy it is called voto preferenziale or preferential vote). If party A is voted by 30% of the electors, it has the right to have 30% of the parliamentary seats and the candidates who received the highest amount of preferential votes are returned to Parliament (if one of them dies or resigns, the first of the non elected in the same party’s list automatically fills up the vacant place).

Also, the system of having to register in order to vote opens a big door to abuses, as Black Americans have learned the hard way in the past, when the Ku Klux Klan prevented them from registering. In continental Europe, everybody has to be registered in the citizens’ roll of the municipality where he/she lives. Each municipality sends the poll certificate to his/her house and records his/her name in the list of the voters of the polling station closer to his/her house. Anyway, if the poll certificate cannot be delivered or if it went lost, one can receive a duplicate straight away at the electoral office of his/her municipality in a few minutes.

Mr. Waruhiu spoke in his book of instability in France and Italy because of this system, but he uses a misnomer. It is not instability. It is democracy! Italy, after the war, has been one of most stable and economically most successful countries in the West, even it they changed 55 cabinets, because the cabinet was always formed by the majority Christian Democratic party and its allies. You see, I can be the best option for the prime minister job today, but in a few months I can go politically nuts and begin doing nonsense. Well, either my coalition partners demand my resignation or I am given a vote of non confidence by the sovereign Parliament and I am replaced. Meanwhile the business of the different ministries goes on untroubled because the local equivalent of the Kenyan Permanent Secretaries continue working. These Permanent Secretaries (called in Italy Direttori generali or Directors General) have tenure. They are people who started their career from scratch and that have reached their position by successive promotions, all of them through difficult and demanding competitive examinations, on the outcome of which the law does not give politicians any say whatsoever. These people know their job much better than their politically appointed Ministers.

After a vote of non confidence to the actual Prime Minister, the President of the Republic begins his most important political job, called consultazioni or consultations. He speaks with the speakers of both chambers, with previous prime ministers, with the leader of each party, with the leadership of trade unions and of employers’ organisations and with whomever he thinks useful. After this round of consultations he chooses the person who has the best chances to form a cabinet, informs him about what transpired from the consultations and, once the two chambers of the parliament have given a vote of confidence to the new government, the President of the Republic swears in the new cabinet. Meanwhile the civil service works as usually, probably better and faster than ever, because they have not to convince a possibly incompetent politician appointed as their minister, on what it is better to do.

A further criticism to the Constitution given to Kenya by the colonial ruler is the way the President of the republic is elected. Let us not look at Kenya, because being our country we are emotionally charged in judging it and let us examine the United States of America. Does anybody of sound mind really think that they had no better persons to choose for the job other than Bush and Kerry? With that system, the people are compelled to choose between the two persons that can collect more money and that can better manipulate their own party! Sorry, the chances that they may also be the best possible options for the country are very very slim and, anyway, the elected head of state, is not the symbol of the whole nation, but the agent of his own party! The President of the Republic must be elected by an assembly formed by all the members of the Parliament with representative of the regional governments and must receive a consistent compulsory majority, at least 75%, in order to compel majority and opposition to agree on somebody who is worth his while and who will command the respect of a vast majority of citizen. Look at Germany and Italy, where this system is in use: they have almost always had extremely good Heads of state (Ciampi, the actual President of the Italian republic, respected and loved by everybody there, is a famous economist, the man that, as the Minister of Finance, actually brought Italy into the Euro monetary system with flying colours. Germany just appointed as head of state a man with a high culture and experience in international financial matters. They do not belong to any party and, in the system used in USA and in Kenya, none of them would have had any chance whatsoever to be considered for a job that they are doing in a wonderful way. Why must we prevent us from choosing among a wide pool of competent peoples, just to follow blindly the stupid, ineffectual and dangerous system used by the U. S. A., where the head of the state is by no means the symbol of the state, but is, as already noted, just the agent of the party that won the election?).

To accommodate the aspiration of a multiethnic society like Kenya, one could probably introduce a system whereby all the tribes are listed in alphabetic order, and each time the Elder of one of the tribe, following the list, is charged with putting together the panel of the candidates for the election to the Presidency.

I am strongly convinced that the application of these principles also in Kenya, would never permit the hatching of any potential dictator; it would assure effective check and balances, would guarantee to the Kenyan a brand of superior democracy and it would make Kenya the Switzerland of Africa in no time! Wherever this system is adopted, not even a single party returned in total control of the Parliament could enslave the country! So, it is high time that somebody in Parliament proposes these changes.

⁽*⁾ The methods of appointing judges of the Constitutional Courts are different in Europe, but all of them make sure that the Parliament, the Executive and the legal experts (Judiciary and Bar) are involved. A good method for Kenya would probably be that one fourth of the Constitutional Judges are indicated by the Parliament, one fourth by the Executive, one fourth by the Judiciary and one fourth by the Law Society.