My Beef With “Online Kenyans” On Recent Legal Amendments


I have witnessed what can be described as misplaced outrage by Kenyans online over amendments that were passed by Parliament on Wednesday night. From the reactions, one can tell that most of those throwing insults at MPs never watched the debates in Parliament and are not even aware of the laws altered leave alone the reasoning behind the amendments. Some have gone to the extent of claiming that the Constitution has been changed.

Before I even go to the reasons why I believe that two of the amendments that have created the “unnecessary outrage”, allow me to point out a disturbing habit by Kenyans. Very many Kenyans sit in comfort expecting the country to run itself or be run in any manner by a few individuals. Many do not bother to even find out what their MPs are discussing despite having the opportunity to do so even online as they “Facebook and Tweet”.

For instance, before bills are debated and tabled in Parliament, Kenyans online have the access by the simple action of searching on Google. Parliamentary Hansard are also available online and would be of help to those who jump into conclusion and mislead others when they are a misinformed by some journalist who also do not bother to counter-check their stories.

For the record, the amendment that should have allowed politicians to vie for more than one elective positions was not passed as reported in some radio stations and newspapers.

Moving on, two amendments stand out. One by Danson Mungatana that will allow Presidential candidates to be included in the nomination party lists and the other by Mutava Musyimi allowing politicians to move from their parties without losing their parliamentary or local authority seats.

I am not a lawyer but from my understanding, the amendments have aligned the Elections Act and the Political Parties Act with the Constitution. Any democrat should see the import of the amendments which to the greater end help in guaranteeing political rights of Kenyans under the Bill of Rights.

The Mungatana amendment to the Elections Act will ensure that a presidential candidate can serve Kenyans in the Senate or National Assembly as a nominated member. Mungatana ably explained the reasoning behind the amendment which not only makes sense but also is in line with Article 38 of the Constitution.

Borrowing from Mungatana’s argument, why should a loser of a presidential run off be barred from serving Kenyans even after receiving millions of votes? Wouldn’t we be trampling on the political rights of the individual and the millions of Kenyans who had voted for him?

If a party decides that it wants its presidential candidate to be on it party-list that will be used to share out nomination seats in Parliament, why should this right be taken away from it? Some argue that such a move would deny “special groups” their right to representation. But this is a rather misplaced argument since anyone can be actively involved in a party’s activities and ensure that they are on the said party-list and qualify for nomination.

Going to Mutava’s amendment, though transitional and one that seeks to avoid a mini election, should be welcomed by anyone who thinks of themselves as a democrat. Mr Mutava’s amendment is actually a good move for the country as we head to the election. Kenya cannot afford a mini-election ahead of the 2013 polls – which are already faced with a financing deficit.

In my opinion this amendment should be streamlined even to exist in the longterm. I believe that  if one is in a party that fails to satisfy its ideals, then there is no reason that this person should be barred from aligning themselves to a different party. parties change their shape and ideals and if an MP sees that his/her party is not helping in his/her core mandate of representing the electorate, then the Constitution guarantees his/her freedom to make another political choice – which in this case is a party.

Who would want their MP to follow their party like a sheep when it is clear that the party does not have the interests of the electorate at heart? An MP should be able to exercise their right to represent the electorate in the right manner regardless of the party affiliation. And this is in line with Article 36 (2) which states that “A person shall not be compelled to join an association of any kind.”

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17 thoughts on “My Beef With “Online Kenyans” On Recent Legal Amendments

  1. Reblogged this on The Daily HornBill and commented:
    Moving on, two amendments stand out. One by Danson Mungatana that will allow Presidential candidates to be included in the nomination party lists and the other by Mutava Musyimi allowing politicians to move from their parties without losing their parliamentary or local authority seats.

    I am not a lawyer but from my understanding, the amendments have aligned the Elections Act and the Political Parties Act with the Constitution. Any democrat should see the import of the amendments which to the greater end help in guaranteeing political rights of Kenyans under the Bill of Rights.

    The Mungatana amendment to the Elections Act will ensure that a presidential candidate can serve Kenyans in the Senate or National Assembly as a nominated member. Mungatana ably explained the reasoning behind the amendment which not only makes sense but also is in line with Article 38 of the Constitution.

  2. The constitution we passed as kenyans shuld b left the way it is. u dnt mek sense to me, shame on u and the greedy politician u r working for. nkt…

  3. While online ‘sofa revolutionaries’ have sound grounds for criticism i do not think they deserve blatant criticism. While you would suggest we are entirely influenced by misguided media one guy tweeeted that he was actually angry that the Hansard was not downloading, the online uproar was an expression of Kenyans frustrations and overt suspicion of everything Mpigs do (even you know self interest comes first to them)

    what u seem to suggest is that when am in a million block of people who voted for a president and he/she lost, the one he /she lost to is not my president and i should still feel i need to be represented by my looser. this is not democracy!

    I do concur with the need to avoid unnecessary mini elections just because someone defected as at this juncture in our democracy we are yet to attain parties that are built on Principe and they are bound to be defectors until maybe we mature in politics some years down the line. we should not pay for these shape snifters. although this is what the law was set to discourage and hasten maturity of party politics to avoid party whorirng.

    i close by saying that while online debaters might be slacktivists as suggested we initiate a community which with time is bound to take action, explore areas of solution (someone tweeted that instead of clamoring for #occupyparliamentke we can find a legal approach to force #mpigs to back down.) we cannot just brush of slacktivist because of few unbridled tweeps or facebook updates a midst us there are sound Kenyans who look beyond the facade and this avenue brings us together to foster a better Kenya.

    I stand to be corrected.

  4. This is what CJ Mutunga had to say about the new constitution and the legislation that arises from it…….

    “……….But what I want to emphasise here is the need to develop new, not only highly competent but also indigenous jurisprudence. I link this last adjective to the Constitution’s value of patriotism. Patriotism requires putting love of country above love of self. For lawyers and judges, it does not mean putting country above justice. I conceive that it requires us to develop the law in a way that responds to the needs of the people, and to the national interest. I call this patriotic and indigenous jurisprudence. Above all, it requires a commitment to the Constitution and to the achievement of its values and vision………..” – CJ Mutunga.

    You can get more of that here: http://bit.ly/KMtWLU

    iRest.

  5. Thanks for all the comments.
    Before I answer, let me ask some questions:
    1. How many actually know what was amended?
    2. Were the portions of the acts amended in line with the Constitution in the first place?
    3. Kenya can afford a mini-election. Right? What is the cost of a single by-election?
    4. Do you know why Kangema has not had an MP four months after Michuki died?

  6. As @Nittzsah said, how come we can afford MPigs pay and not a by-election? But then again, we are talking about MPigs whose main reasoning behind their legislation is nothing but saving their stomachs and all…… nothing about the electorate, their employer!

    This may be taken to court for constitutionality……..!!

  7. i find what you said leaning on one side..mungatana is not the monopoly of reasons. the COE had enough brains to craft what they did, the debate ensuing that lead to “our misguided” belief that once you’re not voted in yours is done. was not empty rhetoric. i find you holding brief for unknown peeps. who said an MP has to belong to a party, you don’t join a party blindly and we want Mps to wake up. if you talk of the recent shifting of alliances, its a pedestrian argument whatever you’re fronting here. and for the record Kenyans thrive on what they are fed by the media and twitter an other forums.. some are busy “building the nation” .. case in point an architect who has buildings to design has no time for googling the hansard but to watch a 15 minute piece of news.. all those amendments are retrogressive and an ambush to the very democracy the constitution is seeking to establish

  8. If one defects to another party then there should be a by election. I am also not a lawyer so I will not tell you the chapter nor the section where it is found but you will agree it is there. The party a candidate was voted to parliament for represents the ideals of the electorates and that is why if an MP defects they no longer represent the electorate. Again there should not be a 2013 election let alone a mini election it should have been done this year as the constitution states.This is just another justification of Selfishness by our MPs and it is so sad if Kenyans like you can’t see.

  9. All you have pointed out is the interest of current politicians not even including aspirants not in power , the outcry by kenyans online represent what the electorate feels. the overwhelming support on the new constitution was by the virtual it offered a way to get rid of the current crop of politicians, the proposed amendments are paving their way back!

  10. Well written piece. Just a few questions:-

    1. Borrowing from Mungatana’s argument: Sounds like if I do not qualify to join the swimming team, then I might as well get the chance to join the football team? And because I am an athlete already, I get priority over any other newbie who would like to join the football team (and who has never had any interest in swimming in the first place.

    2. It appears that these amendments (sorry.., realignments) are more in favour of the interests of the MPs, rather than the electorate. For me all the “hurdles” that were in the way of their political ambitions guaranteed that majority of them will go home and graze cows and we in turn would get a new crop of leadership. Or isn’t that not what #KOT wants? Have you thought for a minute that maybe that’s why we have so much “misplaced outrage”?

    3. As far as party politics go, I follow individuals, not parties. Reason being, there may be individuals in a party/ an alliance of parties that I may not agree with but are part of my chosen leader’s party. I look at our political parties like a vehicle and there those MPs who just joyride on the fame of the party yet they bear no real allegiance to the party ideals. I can’t tell their true character from the party’s manifesto. That’s why for a long time, many of people got into leadership positions through these party charade. Remember the the three fold voting? President, MP, councilor, all from one party. Don’t you think that the idea of not shifting parties was also supposed to guarantee that we don’t have the same crop of leaders? As far as ‘who would want their MP to follow their party like a sheep’.., it would teach MPs to do something about their precious parties, not run away from the problem. Don’t you think they just made it easy for themselves to jump ship anytime they want? And of course they rode on article 36 (2) which states that “A person shall not be compelled to join an association of any kind.”

    4. As regards a mini election, why is it that this country doesn’t seem to be able to afford anything other than MPs salaries and Presidential retirement perks? Don’t you think it riles the electorate when the same people in Parliamentary Committees are among the bunch of MPs who don’t pay taxes so that maybe we can start affording a few other “important” things in this country?

    5. Finally, why do you journalists blame the electorate when they believe what journalists tell them or interpret for them? Aren’t you part of what our research firms regards as the most trusted institution? Aren’t you the guys who should be breaking down the facts for us? Aren’t you the folks who should be presenting both sides of the story? As far as I can tell, your piece is pretty much one-sided. Why haven’t you questioned our so called “misplaced outrage in your post?” But this is your blog, and you’re allowed to break the principles of journalism. On the Daily Nation, you can be someone else and perhaps present a fair and balanced report (I wish it was an opinion piece)

    I’ll ask more questions as the conversation continues.

  11. Like I said to someone earlier, we aren’t so helpless as to relegate ourselves to always reacting. The political realm is approached with a bias as it were, perhaps why there’s these many myopic voices.

    what we really are dealing with here is angst-driving-reaction, not public participation-driving-objectivity. amidst all the noise and what would otherwise be righteous anger channelled towards worthy causes,we are caught up shutting down the voices of ignorance which,unfortunately, are the loudest.

    a feasible next step is to take these loud voices, educate them on the constitution,on the law that governs this land,so that next time a sensation stirs up, they are fuelled by knowledge.

  12. Then what in the world do you see as the role of political parties in Kenya. If one can hop from party to party as easily as one changes trousers, what is the need of a political party at all? We should be moving away from personality politics and towards building lasting institutions. A political party should be a body with a collective manifesto and a political stand. A political party should not formed in two weeks, hold a press conference with fancy t-shirts and a catchy name and then be solely used as a vehicle for a single politician. We in Kenya blindly follow personalities without thought for what they stand for, and what will happen when they are gone. And this amendment further entrenches that unsustainable approach to democracy. A political party should be more than it’s members, or even its top “star” politician. It is the freedom of the elected person to leave the political party, but then they have no right to the seat that the party helped him/her to win.

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