Catching up with neighbours on gender parity

For well over two decades, Kenya has remained sharply divided as to the nature, form and content of a new constitution.

The divisions have largely been accentuated by the diversity and divergent views of the general populace, based purely on ethnic, cultural, social, economic as well as political considerations.

It is therefore with a sense of deep relief that Kenya is finally working itself out of this quagmire towards actualising the dream of more than 42 tribal groupings.

This new dawn for Kenya is happening in the backdrop of the emerging East African Federation.

It is imperative, therefore, to examine, from a comparative analysis, the place of Kenya’s new constitutional order under the new draft law for us to understand how it sits with the rest of the East African systems, from a governance, judicial and empowerment perspective.

The philosophy upon which the East African co-operation is predicated is the commonality of interests, including economics and market access, judicial and other legal processes as well as governance systems.

A major departure in respect of the Kenyan case from the rest of the regional constitutional provisions is that whereas in Kenya the prime minister shares executive power with the president, the prime ministers for instance in Rwanda and Tanzania merely “co-ordinate and supervise the functions of government agencies or ministries.”

The judiciary also has major differences.

The Kenyan draft law has securely limited to six, the number of months a retiring judge may stay on.

In sharp contrast, in Uganda, High Court judges retire at 62 or, as may be prescribed by parliament.

One may stay on to clear pending work, as in Tanzania, but peculiarly, in the Rwandan constitution unless the law otherwise provides, judges stay on for life!

The spirit of the East African Federation presupposes uniformity in institutional, administrative and legal fundamentals.

Yet at the same time it is inconceivable that the federation states couldn’t possibly find a common retirement age for the judges serving in this jurisdiction.

Quite welcome is the proposed creation of the constitutional court and the supreme court.

Indeed, Uganda already has this structure in place, and the Committee of Experts seem to have drawn from this, particularly given that Prof Frederick Ssempebwa of Uganda was seconded to the Committee to enrich its work from his immense experience.

It looks likely that both Kenya and Uganda might subject their judges to parliamentary approval before appointment to office by the president.

Gender parity has for decades remained a thorny and sensitive issue, if not elusive throughout the region of East Africa.

The new draft constitution dedicates an entire chapter to the Bill of Rights, binding on and applicable to all state organs and persons.

Section 38, for instance, declares that women and men have the right to equal treatment including the right to equal opportunities in political, economic, cultural and social activities.

Of particular significance is the creation of new provisions for a Human Rights and Gender Commission.

This is a major departure from the position in Uganda which has two separate commissions for Gender and Human Rights.

Mixing the two as proposed in the draft Kenya constitution is not tenable as the chair may not always necessarily be a woman!

In Tanzania, Article 66(1) (b) of the constitution, parliament must include women to not less than 30 per cent of all the members.

One may safely argue that, if enacted, the Kenya draft constitution will enable Kenyans to catch up with the rest of the partners on gender parity.

Devolution of government and revenue collection are the other thorny issues that the East Africa continues to grapple with to this day.

A devolved system of government is predicated on the philosophy of empowering the citizenry at the grass-root and community level.

Local decisions

It presupposes the supremacy of local people in determining their development agenda as well as to set their own goals and objectives in order to uplift their individual and collective standards of living, and to make progress in tandem with the rest of their colleagues at the national level.

The new Kenyan draft provides a devolved government, at both national and regional levels.

The cardinal feature in any devolved system should be geared towards financial and economic autonomy of the regional and local assemblies.

This would be best determined in the manner and extent of the revenue base of the governments.

Under the draft law, the national government retains its authority to collect revenue within the provisions of the fifth schedule, with taxation powers intact.

The counties too have been provided with taxation powers under the draft.

Overall, the Kenya Revenue Authority has been retained with its overriding powers within the draft, though under a different name.

The cardinal object in the Kenyan draft is given, inter alia, as ensuring a democratic state, recognising the right of local communities to manage their own local affairs to assist in that management, and accountable exercise of sovereign power and promoting social and economic development for the people.

Overall, it must be stated that the governments of the region have made a good attempt at ensuring that public expenditure is governed by law, in an effort not only to stem spiralling corruption but, more importantly, to ensure proper systems of accountability and transparency.

The people of East Africa have long been asking for accountable governments, and through devolved systems of administration and governance, and through proper and accountable use of revenue and regulated taxation, previously glaring loopholes in the public granaries of finance may well be a thing of the past.

The people of Kenya must now rise to the occasion and determine their own fate by subjecting the new draft constitution to public scrutiny and inexhaustible debate.

But this must be done with sobriety and objectivity, in order to give this great East African nation the benefit of a much needed constitutional order for generations to come.

So as not to transform the Committee of Experts into dictators, the constitutional review process has made provision for the people of Kenya to subject the document to thorough public debate within 30 days, thus empowering the citizenry to feel that they truly own the whole process, thus enabling them to make whatever amendments they in their opinion deem necessary.

Okong’o Omogeni is an advocate and chairman of the Law Society Of Kenya and chairman, Kenya Anti-Corruption Commission Advisory Board