BY:FWAMBA NC FWAMBA..THE CONSTITUTION UNDER ATTACK

MR PRESIDENT,THE NEW CONSTITUTION IS UNDER ATTACK. By Fwamba NC Fwamba.................................................................... When we campaigned, voted and promulgated the constitution on 27th August 2010, president Kibaki and other government officials took fresh oath of office. Unlike the rest of the leaders, protection of the constitution was part of the presidential oath and responsibility. That is why he holds an extra burden of ensuring that our constitution is adhered to at all times. The walk to attaining the constitution was rough in the history of this country and therefore it was a sigh of relief to majority of Kenyans especially those who suffered under Kanu’s monolithic dictatorship. Our constitution is not yet one year old and there appears to be serious confusion caused by various interpretations of the law by diverse individuals and non governmental organizations. The constitution Implementation Commission which is entrusted with overseeing the process of implementing the constitution appears not left behind in the creation of this confusion. Every time the chair of the commission speaks, it vividly comes out that he is trying to express his personal opinion as opposed to making utterances that are reflective of the constitution and the mandate of the CIC. In the recent past, there has been a spirited campaign through the media with people lobbying for their preferred candidates to take up the position of the Attorney General. Most notable is Professor Makau Mutua’s article in the Sunday nation 24th July 2011.Professor Mutua, a man with enviable academic credentials in law decided to give his opinion on the basis of his preferences at the expense of making true references to the constitution. Professor Mutua presented the cv of his preferred candidate to the wrong audience. Article 33 of the constitution provides for freedom of expression. Section 2 of the article 33 of the constitution also states that freedom of expression does not extend to propaganda. The article reminds me of a phrase that the ‘right to be heard does not necessarily include the right to be taken serious’. In his piece, Prof Mutua wants the current Attorney General to be out of office with Godspeed which I consider a good idea but unnecessary. Unnecessary because the constitution already provides for the same; that Wako’s tenure officially expires on 27th of August and thus its expected that by the deadline, we will be having a new Attorney General to help speed up the reform process as provided for in the constitution. Prof Mutua with disregard to the constitution has abrogated himself the role of determining the procedure, short listing and finally selecting the person he thinks is best suited to be that Attorney General. He has gone ahead and even suggested that president Kibaki and Prime Minister Raila Odinga follow his procedure and eventually appoint Prof Mutua’s choice. That is ridiculous. It’s ridiculous in the sense that the constitution is already very clear on the requirements and procedure of appointing the Attorney General. What Prof Mutua should do is to advise his preferred candidate to present her CV to the appointing authority. The leadership of this country was elected based on people’s judgment and the powers given to any leader by the constitution cannot be usurped by mobs or people with vested interests. Article 156 section 2 of the constitution clearly states the process of appointing the Attorney General. The article states ‘the Attorney General shall be nominated by the president and with the approval of the national assembly, appointed by the president’. It’s our constitution that gives the president and the national assembly the role of appointing the Attorney General and that must be respected unless if we are advocates of anarchy. I am surprised that well trained lawyers want to push us into violating the constitution instead of playing a cardinal role in providing accurate constitutional civic education to correctly help ordinary Kenyans in interpretation and understanding of the same. The opinion leaders might be having diverse interests and wishes. It must be recognized that the national assembly was given a role in the appointing process because the members of parliament represent the electorate and the general Kenyan population. No one else can purport to be a more legitimate people’s representative than the parliamentarians who have direct mandate from the masses. Recently another debate came up from the same clique that the Attorney General should be a woman. I have gone through the constitution many times and I have not come across such a provision. They appear to be relying on the principle of having at least one third of every institution represented by women. This notion appears to be totally misguided because the Attorney General’s office only has one person and therefore the issue of gender doesn’t arise. Gender activists and other foreign interests have been in arms in advocating for this kind of arrangement. The person to be appointed the AG should be either gender as long as the person has integrity and with the best qualifications in respect to the constitutional requirements. The Commission on the Implementation of the Constitution, the Civil Society, legal scholars and all other stake holders should try as much as they can to help Kenyans in understanding the law instead of taking advantage of their credentials to mislead Kenyans. We also need to delink the process from the interests of international non governmental organisations whose interests are not necessarily in tandem with the ordinary Kenyan citizenry. The appointment of the Attorney General should be done according to the constitution because the constitution serves all of us as opposed to the NGOs that serve sectarian interests. It’s important that we uphold the rule of law under which sometimes we gain and sometimes loose so that others gain. That is what happens in a democracy. If we don’t adopt this principle, the country might start falling victim to a new dictatorship; a dictatorship of some egocentric civil society functionaries. Fwamba NC Fwamba Box 41046-00100 Nairobi +254721779445