BBI can lead to change without a referendum

To deal with problems of ‘winner-takes-it-all, toxic and divisive electoral contests’ the BBI report proposes an expanded national executive that adds a Prime Minister and two deputy Prime Ministers to the national executive and allows Cabinet secretaries to be drawn from Members of the National Assembly.

The argument is that the new seats will accommodate most, if not all actors and ethnic interests into government. Curiously, the BBI also proposes that the president can fire the Prime Minister and Deputy President. Critics have cautioned that this will drive Kenya in the direction of an imperial presidency.

Moreover, the BBI proposes the creation of the office of Judiciary Ombudsman (JO) who will seat in the Judicial Service Commission as a member mandated to receive, handle and resolve complaints against judges, magistrates and other judicial officers and make disciplinary recommendations.

It is worth noting that the JO, as proposed by BBI, is an appointee of the president. Many see this as an attempt to introduce a judiciary controlled by the executive by further extending the Executive’s influence in the JSC, which is currently in charge of selecting judicial officers – a function taken away from the executive post-2010.

Taken aback

Currently, it is perceived that the Executive wields influence over four JSC members, namely, the Attorney General, a Public Service Commission representative and male and female representatives of the public appointed by the president.

JO would tilt the balance of control in JSC to five, whereas the representatives drawn from the Judiciary are five and LSK has a male and female representative each.   

Many are wondering why Kenyans are being taken back to an overbearing president, a less independent judiciary and a legislature that can be compromised by the prospects of appointment to the Cabinet.

History teaches us that this is a dangerous combination for democracy, especially for government critics.

In the past, they were prevented from organising, arrested, detained for long periods, tortured, charged on trumped-up provisions and jailed under the watch of a judiciary beholden to the executive.

Since the promulgation of the new constitution, the Judiciary has improved by leaps and bounds and set judicial precedents that are celebrated the world over. 

What we really need to fix in Kenya is our electoral process, impunity, the culture of subverting laws and disregard for the Constitution. Combined, they enable power to be used to subvert electoral laws. To signal a clear break from the past, BBI can facilitate certain tangible changes even without constitutional amendments.

Public sector

In the justice sector, BBI should seek to solve the problem of the executive and political leaders disobeying or disregarding court orders.

To begin with, all court orders should be honoured. As a matter of necessity, the government must publicly apologise to Miguna Miguna and facilitate his return to Kenya.

A programme of acknowledgement and compensation should be rolled out for victims of human rights violations. In addition, all TJRC recommendations should be implemented.

In the area of separation of powers, BBI should ensure the Judiciary Fund is fully operationalised to buttress judicial independence and operational functionality.

On the unity and inclusivity front, the NCIC status reports on ethnic representation in the public sector should form a basis of reviewing hiring policies to eliminate ethnic bias.

All appointments must forthwith reflect the face of the country with positive affirmative action policies that comply with the two-thirds gender rule.   

Regarding elections, it would be necessary to ensure IEBC is properly constituted with competent staff and commissioners as soon as possible because preparations for the next elections usually start the moment the previous ones ends. 

Most importantly, political players should pledge and confine themselves to legal means of dispute resolutions such as party dispute tribunals, the Political Party Tribunal and courts of law.

All forms of electoral malpractices, including incitement to violence, assault, arson and destruction of property, must be investigated and perpetrators prosecuted.

-Mr Kiprono is a constitutional and human rights lawyer. emaslaw@gmail.com