By Florence Omosa

Kenya has been expecting a new constitution for almost 20 years. So when it comes, it better be better; serve us and future generations for the better. A constitution that provides the necessary checks and balances, reduces some offices from godly to human status, and institutionalises our shared ideology and values.

When I was in Standard Four, our teacher taught us that there were three arms of government; the Judiciary, Legislature, and Executive, to provide the necessary checks and balances. As an adult, I have discovered this teaching timeless.

Our current constitution violates this and gives the Executive godly powers, lording it over the other two arms, making the idea of checks and balances a big joke. So, many Kenyans died in search for a new constitution that serves Kenyans and not the leadership.

Most Kenyans therefore expect the new constitution to balance the three arms and I believe the creation of the position of the head of state is to have the Executive checked by the other arms. The new constitution must thus give equal powers to each arm. No arm should create another, though an arm can approve another; to avoid creating elite clubs which scratch each other’s backs, a misfortune we have lived with for many years.

For example, the Chief Justice (CJ) or PM should not be created by Parliament and neither should ministers remain MPs. Doing so is mixing arms and giving one arm too much power.

I suggest that the CJ and judges be selected by a panel, using criteria pre-approved by key stakeholders. Parliament approves. The panel be made up of persons who are highly qualified, of high integrity and beyond reproach, who are competitively nominated by each region. The president assents or declines, with reasons. Two, Kenyans should elect the PM. Parliament ensures that the winner has a majority of MPs. Then the PM relinquishes his parliamentary seat, forms and heads the executive arm. If an MP is part of the executive arm of government as a minister, he must relinquish his parliamentary seat as he has become a civil servant.

As far as I know, it is illegal for anybody to have two payslips in Kenya. Why have ministers and the president continuously violated this rule?

If we truly wish to become transparent, principled, fair and end impunity, rules have to apply across board; every employee is important and each must be respected and be subjected to the same rules of employment. So, one who takes up a ministerial post, must cease to be an MP. Otherwise we create semi-gods and then complain about their lording behaviours. Moreover, and this is critical, the separation of powers principle must be applied. One cannot make legislation and then go ahead to supervise its implementation.

We cannot afford and tolerate another constitution that violates the above fundamentals. If the separation of powers is wanting in the proposed setup, then we would rather wait than get a constitution that takes us back. The idea was not to move powers from the president’s office to the PM’s or any other arm.