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KURIA: What we need in a pre-2022 elections constitutional review

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When speaking at Kisumu on December 13, President Uhuru Kenyatta manifested his wish to making the 2010 Constitution a blue print for ”a perfect union” – one of the legacies he wishes to leave behind when he vacates office in 2022.

This is a most welcome pledge. He has acted on the correct view that democracy, as a system of government, is, everywhere in the world, work in progress. Even such old democracies as Britain and USA have not attained full democratic governance. Every generation in the democratic world has a duty to strengthen the democratic institutions it finds in place.

The President formally opened a debate on both the content of the reforms and the process. He is quoted as having stated: “We must examine whether our winner-takes-it-all approach to elections is a good or bad thing for the Nation. We must then find the ways to address it.”

Five things are significant about that statement, the first being that it was made in an area where the voters were so disgusted by our electoral system that they decided that they would not participate in the repeat Presidential elections held on October 26, 2017. He also made the statement in an area where people chose not to vote for him.

The implied message was that when he leaves office, he wants the country to have an electoral system in which the voters and the elected have confidence.

PROPORTIONAL REPRESENTATION

The second thing the President implied in that statement is that when it comes to undertaking the review, everything will be on the table. There will be no sacred institution. He expressly referred to the proportional system of representation of the kind that obtains in Germany, Israel and New Zealand where parliamentary systems of government exists as an alternative to be accepted or rejected. In those countries, the executive power of the government is wielded by a Prime Minister who is assisted by a Cabinet formed from the political party with the majority of Members of Parliament or from a coalition of political parties which have decided to work together. The Head of State is a ceremonial one.

In Germany and Israel, he is called the President whilst in New Zealand, it is the Queen who has a representative. The system of proportional representation also obtains in Australia.

TRANSFORMATIVE CONSTITUTION

The alternative to this system is the American type of the Presidential system where the President is not a Member of Parliament and the Cabinet is chosen from among those who are not Members of Parliament. This is the system we have in Kenya today. By referring to the opposite of winner-takes-all which obtains here, the President was emphasising on how open-minded Kenyans should be when it comes to undertaking the review.

Indeed, some of the constitutional reforms needed are merely administrative. Apart from a few areas, the 2010 Constitution is a good document which the Judiciary is using to transform the governance of the country admirably. Among other things, the Court has held that the Constitution is a transformative document which requires a new style of governance. It is the Judiciary that serves as the guardian of that Constitution and has, in many cases, nullified actions of the executive arm of the Government that have offended the national values of transparency and accountability.

They have also nullified actions which contravene a citizen’s right under Article 47 of the Constitution to an administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair. It has fined public officers who have disobeyed court orders and has awarded compensation to those whose fundamental rights and freedoms have been contravened.

The mood at the forum for review, therefore, should be that we have a good Constitution which needs to be strengthened.

One of the serious constitutional problems which the country is facing today is disobedience of court orders. As we engage in this dialogue, one of us, Miguna Miguna, is residing in Canada against his will because a court order has not been obeyed. Recently, the Ministry of Defence, in a court filing, stated that it has not satisfied decrees under which it is obliged to pay over shs4 billion to victims of violations of human rights!

In 2010, a Kenyan Court, quoting from Thomas Paine’s pamphlet, Common sense, observed that ”In free countries, the law ought to be king; and there ought to be no
other”.

In all constitutional democracies, including Kenya, the law is the King. We have failed greatly. This is not only recently but also over the last 40 years. When, in Arnacherry Limited -v- Attorney General [2014] eKLR, the High Court was awarding to the Petitioner sh850 Million for deprivation by the Government of its two farms which measured 914 acres, it observed that numerous orders the Court made in HCCC No. 690 of 1984 were not enforced. To use the Court’s own words, “the orders were in fact blatantly and contemptuously disregarded by the police and the Provincial Administration.”

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Where court orders are not obeyed, anarchy is bound to come. Since 2010, the Independent Commissions like the National Police Service Commission which is established by Article 246 of the Constitution and Independent Electoral & Boundaries Commission which is established by Article 88 of the Constitution have not performed well at all.

Our problems do not come from the content of the Constitution only. Our own attitudes towards law, actions and omissions are in great need of change too. The review of the Constitution will, therefore, include establishing not only why the institutions were established but also why they have not performed as expected.

The Judiciary has raised the bar of democracy in the area of law-making. In a number of cases, it has declared null and void both national and county government legislation which has been made without public participation.
The review of the Constitution will consider why the other two arms of the government have not done as well.

The third thing is the proposal that the reforms must come up with proposals to be implemented by both the Government and the people through another referendum. By saying “We must then find the ways to address it,” the President was emphasising the fact that we must go beyond the dialogue. He is to be understood to have been addressing all constitutional issues and not just the choice between the proportional system of representation and the winner-takes-all approach.

In addition, the President was alluding to the actual tried forums for the dialogue.

The fourth thing is the democratic character of the review which the President envisions. In the passage quoted above, he used the expression “We” twice. He no doubt was using the expression “We” as it is used in the Preamble to the 2010 Constitution. In it, the Kenyan people declared that “We, the people of Kenya” “enact and give this Constitution to ourselves and to our future generations.”

The review of the Constitution will be democratically undertaken by the people.

The fifth thing is that the commencement of the dialogue was announced in Kisumu in the presence of the leaders of all main political parties – the President, Raila Odinga, William Ruto, Kalonzo Musyoka, Musalia Mudavadi and Moses Wetangula.

Even though the country’s religious leaders, leaders of civil society, representatives of the business community, farmers and industrialists were absent, there is nothing unusual about this absence since the function was political.

However, it is imperative that the constitutional review be non-partisan. Raila Odinga and the Catholic bishops have expressed their preference for a parliamentary system of government. The President himself has dealt with options such as the proportional system of electing members of the legislatures. Mr Odinga is advocating for a return to the hybrid system which was recommended in the Bomas document. He is quoted as wanting the structure of the executive to be reformed. He argues that the Presidential system is not suitable in multi-ethnic societies.

This argument does not persuade many. Human nature is the same for all human beings. A good system of government must be based on acute understanding of human nature. It is clear that he would like the current American type of the Presidential system
to be replaced with the Prime Minister/Parliamentary system.

He is entitled to his views. So are the other Kenyans who have not pronounced themselves. It is at a referendum that that question will be settled. Hopefully, the government and the opposition will facilitate the process and not turn the review into another power contest. That contest should come after the reforms are agreed upon and implemented.

All the political leaders who attended the meeting in Kisumu should warn themselves of the potential danger to the country in using the constitutional review to realise their personal political ambitions

Dr Kuria is a Senior Counsel.



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Public officers above 58 years and with pre-existing conditions told to work from home: The Standard

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Head of Public Service Joseph Kinyua. [File, Standard]
In a document from Head of Public Service, Joseph Kinyua new measure have been outlined to curb the bulging spread of covid-19. Public officers with underlying health conditions and those who are over 58 years -a group that experts have classified as most vulnerable to the virus will be required to execute their duties from home.

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However, the new rule excluded personnel in the security sector and other critical and essential services.
“All State and public officers with pre-existing medical conditions and/or aged 58 years and above serving in CSG5 (job group ‘S’) and below or their equivalents should forthwith work from home,” read the document,” read the document.
To ensure that those working from home deliver, the Public Service directs that there be clear assignments and targets tasked for the period designated and a clear reporting line to monitor and review work done.
SEE ALSO: Thinking inside the cardboard box for post-lockdown work stations
Others measures outlined in the document include the provision of personal protective equipment to staff, provision of sanitizers and access to washing facilities fitted with soap and water, temperature checks for all staff and clients entering public offices regular fumigation of office premises and vehicles and minimizing of visitors except by prior appointments.
Officers who contract the virus and come back to work after quarantine or isolation period will be required to follow specific directives such as obtaining clearance from the isolation facility certified by the designated persons indicating that the public officer is free and safe from Covid-19. The officer will also be required to stay away from duty station for a period of seven days after the date of medical certification.
“The period a public officer spends in quarantine or isolation due to Covid-19, shall be treated as sick leave and shall be subject to the Provisions of the Human Resource Policy and procedures Manual for the Public Service(May,2016),” read the document.
The service has also made discrimination and stigmatization an offence and has guaranteed those affected with the virus to receive adequate access to mental health and psychosocial supported offered by the government.
The new directives targeting the Public Services come at a time when Kenyans have increasingly shown lack of strict observance of the issued guidelines even as the number of positive Covid-19 cases skyrocket to 13,771 and leaving 238 dead as of today.
SEE ALSO: Working from home could be blessing in disguise for persons with disabilities
Principal Secretaries/ Accounting Officers will be personally responsible for effective enforcement and compliance of the current guidelines and any future directives issued to mitigate the spread of Covid-19.

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Uhuru convenes summit to review rising Covid-19 cases: The Standard

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President Uhuru Kenyatta (pictured) will on Friday, July 24, meet governors following the ballooning Covid-19 infections in recent days.
The session will among other things review the efficacy of the containment measures in place and review the impact of the phased easing of the restrictions, State House said in a statement.
This story is being updated.
SEE ALSO: Sakaja resigns from Covid-19 Senate committee, in court tomorrow

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Drastic life changes affecting mental health

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Kenya has been ranked 6th among African countries with the highest cases of depression, this has triggered anxiety by the World Health Organization (WHO), with 1.9 million people suffering from a form of mental conditions such as depression, substance abuse.

KBC Radio_KICD Timetable

Globally, one in four people is affected by mental or neurological disorders at some point in their lives, this is according to the WHO.

Currently, around 450 million people suffer from such conditions, placing mental disorders among the leading causes of ill-health and disability worldwide.

The pandemic has also been known to cause significant distress, mostly affecting the state of one’s mental well-being.

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With the spread of the COVID-19 pandemic attributed to the novel Coronavirus disease, millions have been affected globally with over 14 million infections and half a million deaths as to date. This has brought about uncertainty coupled with difficult situations, including job loss and the risk of contracting the deadly virus.

In Kenya the first Coronavirus case was reported in Nairobi by the Ministry of Health on the 12th March 2020.  It was not until the government put in place precautionary measures including a curfew and lockdown (the latter having being lifted) due to an increase in the number of infections that people began feeling its effect both economically and socially.

A study by Dr. Habil Otanga,  a Lecturer at the University of Nairobi, Department of Psychology says  that such measures can in turn lead to surge in mental related illnesses including depression, feelings of confusion, anger and fear, and even substance abuse. It also brings with it a sense of boredom, loneliness, anger, isolation and frustration. In the post-quarantine/isolation period, loss of employment due to the depressed economy and the stigma around the disease are also likely to lead to mental health problems.

The Kenya National Bureau of Statistics (KNBS) states that at least 300,000 Kenyans have lost their jobs due to the Coronavirus pandemic between the period of January and March this year.

KNBC noted that the number of employed Kenyans plunged to 17.8 million as of March from 18.1 million people as compared to last year in December. The Report states that the unemployment rate in Kenya stands at 13.7 per cent as of March this year while it stood 12.4 per cent in December 2019.

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Mama T (not her real name) is among millions of Kenyans who have been affected by containment measures put in place to curb the spread of the virus, either by losing their source of income or having to work under tough guidelines put in place by the MOH.

As young mother and an event organizer, she has found it hard to explain to her children why they cannot go to school or socialize freely with their peers as before.

“Sometimes it gets difficult as they do not understand what is happening due to their age, this at times becomes hard on me as they often think I am punishing them,”

Her contract was put on hold as no event or public gatherings can take place due to the pandemic. This has brought other challenges along with it, as she has to find means of fending for her family expenditures that including rent and food.

“I often wake up in the middle of the night with worries about my next move as the pandemic does not exhibit any signs of easing up,” she says. She adds that she has been forced to sort for manual jobs to keep her family afloat.

Ms. Mary Wahome, a Counseling Psychologist and Programs Director at ‘The Reason to Hope,’ in Karen, Nairobi says that such kind of drastic life changes have an adverse effect on one’s mental status including their family members and if not addressed early can lead to depression among other issues.

“We have had cases of people indulging in substance abuse to deal with the uncertainty and stress brought about by the pandemic, this in turn leads to dependence and also domestic abuse,”

Sam Njoroge , a waiter at a local hotel in Kiambu, has found himself indulging in substance abuse due to challenges he is facing after the hotel he was working in was closed down as it has not yet met the standards required by the MOH to open.

“My day starts at 6am where I go to a local pub, here I can get a drink for as little as Sh30, It makes me suppress the frustration I feel.” he says.

Sam is among the many who have found themselves in the same predicament and resulted to substance abuse finding ways to beat strict measures put in place by the government on the sale of alcohol so as to cope.

Mary says, situations like Sam’s are dangerous and if not addressed early can lead to serious complications, including addiction and dependency, violent behavior and also early death due to health complications.

She has, however, lauded the government for encouraging mental wellness and also launching the Psychological First Aid (PFA) guide in the wake of the virus putting emphasis on the three action principal of look, listen and link. “When we follow this it will be easy to identify an individual in distress and also offer assistance”.

Mary has urged anyone feeling the weight of the virus taking a toll on them not to hesitate but look for someone to talk to.

“You should not only seek help from a specialist but also talk to a friend, let them know what you are undergoing and how you feel, this will help ease their emotional stress and also find ways of dealing with the situation they are facing,” She added

Mary continued to stress on the need to perform frequent body exercises as a form of stress relief, reading and also taking advantage of this unfortunate COVID-19 period to engage in hobbies and talent development.

“Let people take this as an opportunity to kip fit, get in touch with one’s inner self and  also engage in   reading that would  help expand their knowledge.

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