Bomas draft the solution to corruption and impunity

From: gordon teti

http://www.eastandard.net/news/?id=1143977994#

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Bomas draft the solution to corruption and impunity
East Africa Standard Published on November 26, 2007, 12:00 am
 
By Henry Mwanzi
 
So far, the debate on whether or not to go federal has not touched on the issues that led to the Bomas constitutional review conference.
 
We must start by asking why we wanted a new constitution.
At the advent of independence, Kenya was dedicated to fighting three enemies: poverty, disease and ignorance. After nearly 40 years, none of these enemies had been conquered. Instead, they had become stronger. So we began to ask: where did we go wrong?
 
And as the pressure mounted, a constitutional review commission was formed. It visited every constituency, received written and oral submissions and even held public hearings in every provincial capital. The commission faithfully recorded what the people said about how they wanted to be governed.
 
The commission itself consisted of persons of undoubted integrity. This group of prominent men and women reached and heard from every sector of our society. And almost to a man, all identified the structure of our governance as the reason for our failure to achieve our objectives as a nation.
 
The Executive and its attendant powers were the problem. To cure this, every sector of our society recommended devolution or sharing of power both vertically and horizontally. The people were saying that the governance structure at Independence was better than the one we have today. They wanted to return to a modified form of the Independence constitution.
 
The people wanted four levels of governance. They wanted to govern themselves at location level, at district level, at regional level and at national or federal level. And at all these levels, Kenyans wanted leadership that was accountable for them — elected leadership that can be removed from office any time it does not live up to expectation.
 
After years of labour and thought the review commission came up with a draft constitution that faithfully reflected the aspirations and the will of the people. A national conference was convened at Bomas to debate and adopt it before sending it to the National Assembly for enactment.
 
The conference was attended by High Court judges, lawyers, civic leaders, civil society leaders, all members of the National Assembly, intellectuals and religious leaders of all faiths. All these distinguished Kenyans, from all walks of life, debated the draft clause by clause, sentence by sentence and made amendments where necessary.
 
In the end an overwhelming majority of delegates — and they were over 600 — agreed the final product reflected the will of the people.
 
A handful of these people, who had tasted power under the current Constitution, resisted the will of the people and attempted to disrupt the conference, to no avail. Even though these delegates opposed the Bomas draft, they knew what was contained in it reflected how Kenyans wanted to be governed.That is why they dared not suggest that the draft constitution be subjected to a referendum.
 
The Bomas draft was the result of the most consultative constitutional process ever undertaken. The people said they wanted a President who is accountable; one who could be removed from office if they abused their powers. They also wanted a regional government that was elected and accountable to them.
 
In creating 14 regions, the delegates did not consider tribe as a factor, so the question of one tribe being expelled from one region or another does not arise.
 
All that devolved government means is that national resources will be distributed equitably among the regions. And that the regions too shall generate local resources to supplement those generated nationally. And that devolved units will have the power to use resources at their disposal on priorities they themselves will have identified.
 
I was at the centre of the Moi Government for many years and observed our system of governance at close range. The problem we face is not the process of governance or law enforcement. We can have as many anti-corruption authorities as we wish, but corruption and other ills will not be contained.
 
Our problem is the basic law itself, the Constitution. Until there is a new constitution that places power in the hands of the people and makes elected leaders accountable, the process of governance will not work. And not just any constitution. It must be the one envisaged by delegates at Bomas and desired by most Kenyans — a constitution that devolves power.
 
For a long time I was a lone voice at Kanu headquarters preaching federalism or devolution of power as a solution to our national problems. I had studied the constitutions of 50 countries around the world. Nearly all had a devolved system of governance. From these I gleaned what was applicable to Kenya.
 
I wanted it presented to the Constitutional Review Commission of Kenya as Kanu’s position, but my bosses at Kanu headquarters would not hear of it. Fortunately, it was not until I had successfully completed merging Kanu and NDP that the opportunity arose for Kanu to present its position.
 
When Mr Raila Odinga came in as Secretary-General, I realised we shared a similar vision on this matter. I revived my document, polished it with the help of Mr Otieno Kajwang and asked Raila to present it to the commission for Kanu, which he did after the commission had closed public submission. Majimbo or a devolved system of government was the answer.
 
I want to state emphatically that Moi was not corrupt. The system or structure of government we have — which concentrates political and economic resources in the hands of the President — is corrupt through and through. Moi was its victim.
Similarly, Kibaki is not corrupt. The system has corrupted him the same way it corrupted his predecessors. Give the current system to any angel from heaven and that angel will be held captive to its corrupting power in a very short time.
 
It used to be said of the Roman Empire that Rome did not impose itself on the world. The world imposed itself on Rome. There are times in the history of nations where people who are yearning for change imposed themselves on a leader. For there can not be change without an agent of change. Such time has arrived for us. Kenyans are yearning for change. And Raila and his team are agents of change.
 
The writer is a professor of History at Kenyatta University