By SGI Oriaro
Dr Ekuru Aukot has been a reputable legal scholar and teacher. I personally will forever be grateful to him and others who served in the Committee of Experts that saw through the Constitution of Kenya, 2010. Sadly, I find the Ekuru Aukot of Third Way Alliance pretty different. We lost him.
It may not shock Kenyans that a person who has read widely on democracy and the rule of law testified to the Supreme Court that it is constitutional for elections not to be held in 25 of 290 constituencies, a departure from what the constitution that he wrote states.
Aukot, in his capacity as an interested party in the case of ‘John Harun Mwau & 2 others v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR’,was full of praise for Wafula Chebukati’s IEBC for conducting free, fair and variable elections on 26 October 2017. Aukot sanctified a flawed process that totally breached a constitution he actively took part in writing. Is he really to be trusted?
Be that as it may, my reading and understanding of the Punguza Mizigo Bill finds it to have some significant grey areas. One thing the bill seeks to do is amend Article 83(1) of the constitution to automatically make anyone with a national identity card a fully registered voter. This suggested provision spells doom if looked at with a fine toothcomb. Given our history with presidential elections, it should be obvious the importance of a well-kept and updated voters register. This is a country where other people have voted with identity cards of their dead relatives. Aukot wants to fully digitise IEBC’s database as if he does not know that technology has previously been used to mismanage elections and I do not think we are ready to eat more than we can swallow – at least not for now. If Third Way Alliance thinks registration of voters is expensive, let them try anything but ignorance.
I will be the first to admit that Kenyans are over-represented at the National Assembly but we need to know that under-representation is worse. Dr Aukot sat at the high table in Bomas pre 2010 and he ought to know better. Geographically, Mombasa is the smallest county, at 219 square kkilometres while Turkana is the largest, at 77,000 square kilometres. In terms of density, Nairobi is the most populated county with slightly over 3.1 million people while Lamu is the least populated with around 101,539 residents. Punguza Mizigo wants counties to be converted into constituencies with two representatives – a man and a woman – sitting at the National Assembly. This is by introducing amendments to Article 89 of the constitution. Definitely the math does not add up if we are to have the same number of people representing Lamu and Nairobi. It also sickens me that a person who comes from a community that has been marginalised for a very long time would wish to interfere with Article 100 that demands Parliament to enact legislation that promotes representation of marginalised groups.
The self-declared official leader of opposition is also calling for amendment of Article 101 by deleting sub-Article 2 and replacing it to read differently. Those who have read the bill will tell you that he does not address what should happen whenever a vacancy occurs in the Senate. It makes me wonder why that is. In relation to this, the Bill also calls for the abolishment of the Office of the Deputy Governor by amending Articles 179 and 180. It then proposes for the introduction of a sub-Article 7A under Article 180 mandating the governor to appoint one person from among the appointed County Executive Committee members to serve as the governor’s principal assistant. What then is the essence of scrapping the Office of the Deputy Governor if you acknowledge the importance of the governor having an assistant? If Aukot’s proposal is to be law, will someone whom voters never elected alongside the governor serve as their governor in the absence of the governor? If not, should county operations stall in the absence of the governor?
Aukot needs to be reminded two things. One, Prof Yash Pal Ghai and Prof. Ben Sihanya are among the constitutional experts who will tell you that ours is a problem of a constitution without constitutionalism. If the word and spirit of the constitution are to be followed, we would hardly have any burden. Two, most of the problems we face as a country are political and their solutions are as good as the government in power. We have not forgotten that in 2017 between August and November, he twice congratulated the IEBC for a job well done. In so doing, he mocked democracy and returned to Kenyans a burden they thought they had laid off. (
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