R. Rose
August 31, 2010
Constitutional Reform – Part 3

The week past has been pregnant with issues impacting on politics in the Caribbean.

In Dominica there was the dismissal by the High Court of challenges to the election of a number of Parliamentarians. At the same time, the Court gave permission to the Opposition to challenge, in court, the validity of the election of two senior government officials, among them Prime Minister Skerritt, on the grounds of having dual citizenship.{{more}} Meanwhile, in neighbouring St.Lucia, the opposition Labour Party has again called for early general elections as a solution to the current economic and social problems. However, it was our own SVG which grabbed the main headlines, again as a result of a court case, enabling the opposition NDP to challenge the validity of the Report of the Electoral and Boundaries Commission. The publication of that Report would pave the way for the upcoming general elections to be contested for a 17-seat Parliament, increasing by two the number of constituencies.

Clearly, all is far from well with the political and constitutional arrangements bequeathed to all these countries by the former colonial power, the United Kingdom. There is hardly any general elections which passes in the Caribbean without such controversy. The approach to remedying the shortcomings has been a time-worn one of political agitation and recourse to the courts. Neither has been able to address the root of the problem. The fundamental constitutional weaknesses are not confined to the Caribbean only. Other ex-colonies of Britain have had to face up to these challenges, with varying degrees of success.

One such country is Kenya in East Africa. General elections there ended in a tribal bloodbath in 2007. Kenya was wise enough to recognize that there were fundamental flaws in its constitutional provisions. It opted for far-reaching constitutional and political reform. I do hope that many of our readers were able to witness, via television or the Internet, the unprecedented scenes of joy which marked the formal promulgation of Kenya’s new Constitution last week. For those of us still with consciences, what a wave of guilt must have engulfed us as we considered how we had blown the opportunity to make a qualitative leap forward? In November last year, we put “teaching him (the Prime Minister) a lesson” above the needs of our own country. To what extent that “lesson” has been absorbed is doubtful at best, but we are still constitutionally short-changed.

Over the past two weeks, I have been trying to draw attention towards aspects of the new Constitution in Kenya in the hope that it can at least keep the constitutional debate alive. This is not an easy task, especially as we gear up for elections. Yet it is only when we run into problems without recourse to adequate solutions that we seem to recognize, temporarily, those inadequacies. This should not deter us, however from continuing to pursue the goal of an appropriate constitution. For what it is worth, let us look at some other provisions of the new Kenyan constitution.

Commissions and independent Offices:

A most interesting aspect of the Kenyan Constitution is the attention paid to making specific provisions for a number of Commissions and independent Offices. According to Section 15:248 of the Constitution, there are 10 Commissions and two Independent offices. These are those of the Auditor-General and the Controller of Budget. The Commissions named are: the Kenyan National Human Rights and Equality Commission; the National Land Commission; the Independent Electoral and Boundaries Commission (note emphasis on “Independent”); the Parliamentary Service Commission; the Judicial Service Commission; the Commission on revenue Allocation; specific Commissions for the Public Service, Teachers Service and National Police Service: and the Salaries and Remuneration Commission.

The following section of the Constitution (15:249), not only spells out the objects of these Commissions and Independent Offices but also makes it crystal clear that they are- “(a) subject only to this Constitution and the law, and (b) independent and not subject to direction or control by any person or authority”. The Constitution goes on to empower the Commissions and Independent Offices by giving them the right to “conduct investigations”, arming them with “the powers necessary for conciliation, mediation and negotiation” and permitting them to recruit their own staff (sec. 15:252 1.). In addition, three Commissions, those for Human Rights, Judicial Services and Land, all “have the power to issue a summons to a witness to assist for the purposes of investigation” (Sec. 15:252. 3). So these are not just paper tigers, but mechanisms given the wherewithal to function independently.

Given the constant controversies over elections and the role of our own Elections and Boundaries Commission, it is useful to take a look at the Kenyan provisions in this regard. We have already noted that Kenya has named its version of this Commission as “Independent”. In terms of eligibility for membership, Sec. 7:88 (2) makes it clear that no person who-(a) has at any time within the preceding five years, held office or stood for election as a member of Parliament, a leadership post in any political party, or holds any state office, is eligible for appointment to any of the Commissions or Independent Offices. Interestingly, besides the customary functions, Kenya’s Constitution gives other important responsibilities to this Commission such as- “the regulation of the process by which parties nominate candidates for elections”, (just think of it in light of ongoing problems in both parties here);”the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results”;”the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election”; and, “the development of a Code of Conduct for candidates and parties contesting elections”, (no reliance on a toothless body put together by the Christian Council, as in SVG).

To put the seal on the proper functioning of the Commissions, Sec. 15:254 makes it mandatory that – “ as soon as practicable after the end of each financial year..”, the Commissions and Independent Offices shall submit Reports to the President and Parliament and provides for these Reports to be published and publicised.

There are many, many other aspects of the Kenyan Constitution that have great relevance to the building of a more transparent and democratic society. I shall from time to time return to these. Suffice it to say, that my hope is that these glimpses of the Kenyan experience will generate enough interest among us to keep the thrust for constitutional refom very much alive. Kenya is celebrating its advance.

We are left to mourn an opportunity lost.

Renwick Rose is a community activist and social commentator.
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