For Online E-newspaper
Daily Nation : February 17th 2014
DAILY NATION Monday February 17, 2014 Opinion 13 RIGHT OF REPLY | Paul K. Muite New law is about the supremacy of the Constitution, not National Assembly Joyce Nyairo anchored her arguments on the constitutional theory of supremacy of Parliament and proceeded to opine that it is the failure of the courts to accept this supremacy and their “overreaching their mandate” in issuing injunction orders against Parliament and county assemblies that has caused the stand-off between the Executive, the Judiciary, and Parliament. With the ratification and W promulgation of the 2010 Constitution, Kenyans jettisoned the Westminister constitutional model/arrangement of supremacy of Parliament. This momentous shift was not accidental; it was informed by our history. With the exception — to some extent — of the first Parliament, the second, third, fourth, fifth, and sixth parliaments (1963–1992) were largely complicit with the Executive in the exploitation and oppression of the people. This is how an imperial presidency was created, giving rise to corruption, land grabbing, impunity, and poverty which afflicted the majority. The seventh, eighth, ninth, tenth, and regrettably now the eleventh parliaments (1992 to date) have distinguished themselves in a catch-up game with the Executive, lining riting in the Daily Nation of Friday, 7 February, 2014, Dr Mr Muite their pockets instead of serving or advancing “Wanjiku’s” interests. When Kenyans put aside the supremacy of Parliament and ushered in the supremacy of the Constitution, they were making a conscious decision based on betrayal over the years by their elected representatives. In the 2010 Constitution, they chose to place their faith, not in their elected representatives, but in themselves through their Constitution. Chapter 1 of the 2010 Constitution is profoundly titled “Sovereignty of the People and Supremacy of this Constitution”. It consists of only three articles. Article 1: “Sovereignty of the People” provides that all sovereign power belongs to the people of Kenya and shall be exercised only in accord- ance with this Constitution. This power is delegated by the people to Parliament, the Judiciary, the Executive, and county assemblies. Article 2: “Supremacy of this Constitution”, to which I have already referred. Article 3: “Defence of this Constitution” provides that every person has an obligation to respect, uphold, and defend the Constitution. Put simply, the Constitution puts the people at the forefront. Article 165 vests in the Judiciary the exclusive mandate to adjudicate on any question relating to the interpretation of the Constitution. Tellingly, sub-Article (2) (d) (ii) vests in the courts the mandate to decide any question as to whether anything said to be done under the authority of the Constitution or of any law is inconsistent with or in contravention of the Constitution. Sub-Article (2) (d) (iii) vests in the courts the mandate to decide any matter relating to the constitutional powers of State organs. Parliament, county assemblies, and the presidency are State organs (see Article 260). There cannot, therefore, be any doubt whatsoever that the 2010 Constitution provides for the supremacy of the Constitution, not of Parliament. The courts have the mandate to issue injunctive orders against Parliament and county as- semblies. This is a profoundly potent power that, admittedly, calls for great circumspection in its exercise. For a start, orders injuncting Parliament should not be granted ex parte except in exceptional circumstances. Accordingly, there is no “engine failure” of our Constitution, as Dr Nyairo suggests. Constitutions, however good, cannot implement themselves. While not perfect (and there is no perfect Constitution in the world), Kenya’s new Constitution is good and progressive. Its values and objectives need to be accepted and embraced by us all. The challenge for its full and faithful implementation is political will. Disobedience of court orders, especially by Parliament and the Executive, is not the way to go. In the matrix of “balances and checks” in the Constitution, the President, as head of the Executive arm of government, is the primus inter pares (first among equals) vis-à-vis Parliament and the Judiciary. As such, he has the added responsibility of ensuring harmony between the three arms of government. The inter-play between the Executive, Parliament, and the Judiciary calls for utmost restraint and mutual respect. Mr Muite is a senior counsel. (firstname.lastname@example.org) THE CUTTING EDGE BY THE WATCHMAN DRY TAPS. A resident of Bishop Makarios Street at Ganjoni in Mombasa, Bernard O. Odhiambo, says the area had for quite some time got used to being supplied with water on Mondays, Wednesdays, and Fridays. The rationing schedule was later changed to Mondays and Fridays, and before they knew it, the water came only once, on Monday, then the supply was then discontinued altogether. The explanation by the water company is about “low pressure”. He quips: “For two months?” His account number is 7005436100, and his contact, BOdhiambo@kpa.co.ke. INSENSITIVE. Although Alex Irungu made a per- fect pitch for the arrest of those who demolished the Sikh monument in Kisumu, notes David Jasondu, he went overboard by claiming that all the lakeside people “revere Omieri, the serpent and practise witchcraft, which is nothing but idol worship”. David adds: “Clearly, this is an insult. Who told him that all the lakeside people, including those from Kisumu, Busia, Mwanza, Bukoba, and Entebbe, are idol worshippers? Alex came off as insensitive, patronising, and unkind. He owes the lakeside people an apology.” The controversial Sikh monument is removed. HARASSMENT. Traffic police officers should stop harassing motorists joining Argwings Kodhek Road at the Silver Springs Hotel roundabout from Total Petrol Station in Nairobi, urges Alfred Ngete. “If you enter the road and head to town, they immediately accuse you of crossing a double yellow line in the middle of the road or causing obstruction or both. If they don’t arrest you, they will force you to drive back to the Hurlingham roundabout before turning back to town. The road is not even marked and yet the harassment continues.” His contact is email@example.com. CONSERVATION | Radha Muthiah traffic jam, and cook, but these issues pale in comparison to the real challenges that millions of women face around the world and right here in Kenya. The reality is that the seemingly simple act of cooking a meal constitutes one of the most significant health and environmental challenges in the world today. Most women in rural communities are up early in the morning as it takes them hours to find firewood. They then carry heavy loads back home to begin the long process of cooking over an open fire or traditional jiko. While cooking they are exposed to harmful smoke and fumes. This prolonged exposure of up to several hours a day, every day, is responsible for the premature loss of four million lives every year from diseases associated with exposure to smoke and has gone unnoticed for far too long. Cooking is essential, but it should not be lethal. The truth is that these are totally preventable deaths. We have the technology, the fuels, and the ability to ensure that no one has to cook the way our ancestors did. We also do not have to travel the world to find these more efficient and cleaner cooking solutions. They are all available right here in Kenya. Cooking should not be a matter of death C ooking is a positive thing. Many of us complain about the time it takes to go to the grocery store, sit in the We have the technology, the fuels, and the ability to ensure that no one has to cook the way our ancestors did and do not have to travel the world to find solutions. So why are we not getting these stoves and fuels to those who need them the most? The simple answer is that we have not made the public aware of the issue, its implications, and the fact that solutions exist. We know the importance of empowering women. How can we say that we are doing that when we are not tackling the issue that is at the core of their lives — time spent collecting fuel and cooking. On average we know that women in rural areas spend approximately six to eight hours a day collecting fuel and cooking. More efficient and cleaner stoves can reduce that time by half, leaving many hours to spend educating their children or earning a livelihood for their families and contributing to the economic and social development of their communities. Think of what healthier, more productive lives can do for Kenya. Think of what WHAT A SHAME. At 11.30pm, on February 9, Fre- cleaner and more efficient stoves and fuels can do for forests and the environment. We may actually have a chance to truly reverse the deforestation that is devastating the country. Global Alliance for Clean Cookstoves, a public-private partnership led by the United Nations Foundation and consisting of over 900 organisations across six continents is focused on creating awareness about this issue, enhancing the technology and performance of cookstoves, increasing the availability of alternate fuels, strengthening enterprises so they can produce these stoves with consistent high quality, and market and distribute them. The efforts aim to improve livelihoods, empower women, and protect the environment. The organisation’s country action plan for Kenya targets five million households adopting clean and efficient stoves and fuels by the year 2020. This has the potential to make Kenya an even bigger leader in the clean cooking sector. Like the great marathon runners of your country, Kenyans have trained for this moment through their experiences, expertise, and passion to innovate and save and improve lives and the environment. It is now time to go. The writer is the executive director of the Global Alliance for Clean Cookstoves derick Iraki strolled into Sailors’ Pub at Hurlingham, Nairobi, to try out their soul music on a recommendation from a friend. He sat at the counter on the ground floor and ordered a cold Heineken beer. He later asked the barman to watch his drink as he went to the washroom. “I checked my back trouser pocket. Alas, my wallet was gone! Surely, a club of that stature should not be home to pickpockets. But I will be eternally grateful to get back my documents, especially the ID.” His contact is firstname.lastname@example.org. LOST AND FOUND. Some really good news for Eric Maina Gaitho, who travelled by bus from Kampala to Nairobi last week. Amos Wambira, who was on the same bus, says he need not go to the trouble of applying for a new passport because his travel document is in his safe custody. Eric, he adds, forgot his jacket containing the passport and some money on the bus. Amos is, therefore, appealing to Eric to urgently contact him on Tel 0725051855 or email: email@example.com to get back his belongings. NOISE POLLUTION. Sports cars and motorbikes should either be kept at home or used only on racing tracks, says Silas Nyambok, wondering why the Nairobi City County government allows the noisy machines to be driven into the central business district. According to Silas, the loud noise triggers alarms in parked cars to go off, allowing street boys to take advantage of the mayhem to break into the vehicles. He is upset that Nema is silent on the nuisance. His contact is firstname.lastname@example.org. Have an acceptable day, won’t you! E-mail: email@example.com or write to Watchman, POB 49010, Nairobi 00100. Fax 2213946.
February 16th 2014
February 18th 2014