My personal take on Chapter 12 of the Harmonised Constitution

Now to my task as a Kenyan. I am not trained in legal matters and what I offer is basically a layman's wish. I have stayed limited to Chapters twelve (Executive) and fourteen (devolution) for now. I have some misgivings about certain matters of language such as:

Article 156 (2) The State President shall exercise the powers and perform the functions of that office on the advice of the Cabinet unless this Constitution states otherwise. Does he SEEK Cabinet advise OR does Cabinet offer such advise without prompting. I think this 'trigger' needs to be put in black and white. For example, the words: Always, constantly, regularly, etc may be juxtaposed somewhere to disambiguate this and help eliminate the Rigera-type scenarios. The president might argue, 'I didn't need the help of the cabinet' on that, and still point to the ambivalence of this loophole. Let us use a toothcomb on the language!

These are my observations and misgivings so far, which I am also sending to the CoE via email.

Presidency: Election and power.

To me the president is ceremonial in all but name. He is not doing anything on his own. Pardon my gender in prose, I don't mean to deprive the women the possibility of ascendancy to the presidency. I just want to limit my fingers' dance across the keyboard merely to appease biases.

Now, a president who ONLY appoints AFTER parliament has RECOMMENDED and CLEARED the officials is powerless. Which is good. HOWEVER, Kenyans go the the polls to ELECT the president. Such an official should act in a way commensurate with the POPULAR mandate given by the populace. Apparently, after being handed the popular mandate, the president is tethered to SH and Nayo Stadium/Uhuru Park. Nothing else. All the day to day stuff will (nay, shall) be in the hands of the PM. The president as envisaged in the constitution is a creation of the Kenyan people through an election. The PM, on the other hand, is the creation of haggling and horse-trading in parliament.

I consider these tasks of the president:

4..The State President shall—

• respect, uphold and safeguard this Constitution;
  
• safeguard the sovereignty of the Republic;
  
• promote and enhance the unity of the nation;
  
• promote respect for the diversity of the people and
  communities of Kenya; and
  
• ensure the protection of human rights and fundamental
  freedoms and the rule of law.
  

5. The State President shall not hold any other State or public office.

A person envisaged in the constitution to act as a nucleus of state cohesion and symbol of national pride MUST be saved the DIVISIVE hustles of electionneering. A father-figure, to me, must be above reproach and spared the blame games and must be guarded against playing a role in the rigours of divisive and non-progressive politics and campaign mirk and mire.

The basis of my argument is these dilemmas:

• Let Kenyans ELECT the GOVERNMENT-FORMING mechanism. Let Kenyans hand over rulership to a person who SHALL EVENTUALLY EXERCISE THAT POWER. If Kenyans elect a president, then let the EXECUTIVE power rest therewith, let the president, in response to the mandate offered by Kenyans LEAD from the front. Allow HIM to lead government and governance. THEN introduce checks and balances through parliament, to ensure that unilateral appointments to key government positions are checkmated through a thorough vetting process seated in parliament. The president SHALL then exercise authority with a very close monitoring by a muscular parliament, which is also answerable to an electorate.
  
  
• IF Kenyans want a PM, as seems inevitable from the proposals. The I propose that the PM and NOT the president be ELECTED, together with his party, by POPULAR mandate by the people of Kenya. Such mandate, originating from the power of Kenyans to cede governance to one man/coalition of men, shall transfer governance to the PM who shall exercise EXECUTIVE authority. The PM, either with his party, or as a leader of the LARGEST (basically 50% plus one MPs), shall offer to form the government.

The mechanism of formation of such a government shall involve procedures such as those witnessed in Israel, Germany and the UK where the PM (a product of TOUGH, even divisive campaigning) offers a proposal to form a government to the president. The president, upon being satisfied that the PM-designate satisfies CONDITIONS (nationality, MPs, Coalition rigours, minority interests in government composition) shall INVITE him to form such a government.

Such a government shall formulate the legislative agenda of GOVERNMENT, which SHALL be promulgated by the president at the STATE opening of parliament. The governance agenda shall be owned by the government (read PM plus ministers), the same government shall implement the agenda.

The PM shall PROPOSE Ambassadors/High Commissioners, judges, magistrates and other government appointees to parliament, which SHALL vet, clear for appointment and forward the same to a president whose only task is to FORMALLY APPOINT. The President shall not amend the list of appointees UNLESS he consults AFRESH with parliament, which should then accept and subject to a similar process, a replacement appointee.

In my proposal, the president is a CREATURE of parliament(s). He is a FIGURE of respect, an eminent and pacifying Kenyan in whose utterances divisions have never been hinted. He shall be a ceremonial figure. Being non-partisan means he may be appointed from non-aligned groups, he may be a member of the minority party etc. Better still, the president may be a product of both parliament and the regional governments. Such figure is likely to satisfy the roles specified in schedule 4(a)-(e) of Article156. The president's election shall be EXACTLY one calendar year after the last election in order to ensure that at the conclusion of an election, and in the transition, there is an incumbent president to ensure continuity.

It doesn't make sense to me that the president appoints the Cabinet, which is then presided over by the PM. May the PM nominate and propose the cabinet to the president who SHALL in turn APPOINT the government.

Further on the ministries, I propose that the constitution names BENCHMARK ministries for key sectors such as:

• Agriculture
  
• Finance
  
• Education
  
• Culture
  
• Transport
  
• Public Works
  
• Lands
  
• Tourism
  
• Health
  
• Foreign Affairs

These ministries should then have substantive departments under the deputy ministers. For example Agriculture may have deputy misters for Livestock, Fisheries, Crop production, etc. Likewise, Kenya should be courageous enough to lump related ministries like natural resources, forestry, and any other under deputy ministers under Tourism. Education shall have science and technology, basic and high education etc. See my thrift?

On devolution. I wanted to ask for the names of the regions, what are they based on? The provinces as they currently exist or as envisaged in Kibaki's 20 regions?