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Departed lawyer Kitonga’s last reflections on BBI

By Emeka Mayaka
Monday, October 26th, 2020
Senior Counsel Nzamba Kitonga who passed on Saturday afternoon after a heart attack. Photo/PD/file
In summary
    • Kitonga led the team that drafted the 2010 Constitution which is now set for changes as proposed by BBI. His committee was tasked with analysing and collating views of Kenyans on constitutional reforms as captured  in Bomas,  Kilifi and Wako drafts and produce a Harmonised  Draft.

Senior Counsel Nzamba Kitonga called me on Friday morning in good cheer.

I had interviewed him the previous day for our front-page story on the Building Bridges Initiative (BBI) report.

Many journalists would attest to the fact that despite being a leading and respected lawyer, Kitonga was readily available to offer his views on constitutional debates as long as you didn’t misrepresent his views.   

He was humble enough to take up writing assignments from editors at short notice.

This would probably explain why he was one of the most-quoted and published legal minds in the Kenyan media. 

The former chairman of the Committee of Experts (CoE) was an asset to journalists, especially in conversations around BBI and law review.

“My friends have been calling over the interview I gave you over the BBI. One of them was particularly unhappy about what I said about the structure of the Executive.

Now, shida ni sijasoma gazeti yenu. Can you send me a soft copy. I hope you did not misquote me,” he said and promised to call back after reading the story.

I quickly sent him a soft copy of People Daily.

Apprehensive

I was, therefore, a little nervous when the Senior Counsel called back an hour later. I was apprehensive on whether I had misrepresented his reflections on the BBI report.

“Nimesoma story,” he said amidst his usual chuckle. “I think you captured my views pretty well.

I know people have strong views around this subject. Asante,” he said. I was greatly relieved. 

I didn’t know this would be my last conversation with him. Come Saturday, I was confronted with posts that Kitonga had collapsed while attending a funeral in Kitui county and efforts to save his life had been unsuccessful.  I quickly reached out to my colleagues who  confirmed the sad reports. 

A few minutes later, I received a call from lawyer Bob Mkangi, a friend and former member of the CoE, who sounded distraught.

Pole sana for the loss of your friend. As former members of the CoE we had planned a forum to reflect on the BBI in the coming week.

We had invited the chairman to participate in the talks. It is a sad situation,” he said.

A respected constitutional expert, Kitonga, 64, led team that drafted the 2010 Constitution which is now set for changes proposed by BBI.

His committee was tasked with analysing and collating views of Kenyans on constitutional reforms as captured  in the Bomas, Kilifi and Wako drafts and produce a Harmonised  Draft. 

The CoE was supposed to handover the Harmonised Draft to the Parliamentary Select Committee on the Constitution which is heavily criticised for “mutilating” the document during their talks in Naivasha. 

For Kitonga, the BBI project provides an opportunity to correct what he calls the “Naivasha debacle”.  

He blamed parliamentarians for changing and weakening the structure of the Senate and the Executive they had proposed in the Harmonised Draft. 

The experts had proposed a pure presidential system but MPs came up with a hybrid structure of government and a Senate.

“The greatest tragedy from Naivasha was the mutilation of the Senate. For the first time in the history of the architecture of constitutions in the world, a Senate was designated as a ‘lower House’.

This had never happened anywhere else in the world,” he said in a memorandum that was submitted to the BBI taskforce.

According to Kitonga, they had envisaged a powerful Senate with a supervisory role over the National Assembly.

However, the Naivasha team came up with a  peculiar structure of Senate that rendered it the “lower” House with an oversight role over county governments without powers to review legislation from the National Assembly. 

“Even during the Roman Empire, the Senate was designed as the ultimate stamp of the people’s authority.

The CoE had drafted a seamless legislative system where Bills and oversight reports would originate from the National Assembly and proceed to the Senate for approval, amendment or rejection.

The Bills would then proceed to the Presidency for assent,” the senior counsel said.

Devolved governance

 Kitonga revealed that assignment of roles relating to devolved governance was sort of an afterthought to repair the damage created in Naivasha.

“We also created mediation committees to avoid constant confrontation between the two Houses.

However, even this has not worked. These are some of the Naivasha outcomes which have come to haunt the nation.

But there are other matters that have arisen which are unrelated to the Naivasha debacle,” he said.

But speaking to the People Daily on Thursday last week, Kitonga was upbeat that BBI proposals reflect a huge chunk of what was contained in the Harmonised Draft.

The BBI has recommended constitutional amendments that if adopted, could lead to expansion of the Executive by creating the post of prime minister with two deputies to ensure inclusivity in governance. 

“The BBI is a good document and an improvement on the Constitution. It carries proposals which were contained in the Harmonised Draft which was mutilated in Naivasha. 

We had proposed the position of Prime Minister, two deputies and ministers to be picked from both in and out of Parliament.

The decision by MPs to remove the provisions was irrational,” said Kitonga.

“I support the BBI document because it attempts to provide remedial actions for the areas that were mutilated in Naivasha.

There is no imperial presidency, because Parliament still retains strong checks and balances. 

The President cannot fire the Deputy President because they are joined together like Siamese twins,” he said on Thursday.

According to Kitonga,  the BBI report provides a cure to the jinxed two-thirds gender rule.

Chief Justice David Maraga has advised President Uhuru Kenyatta to dissolve the two Houses of Parliament as punishment for their failure to pass legislation to implement the two thirds gender rule.

The fate of MPs now hangs in the hands of a five-judge Bench set up to hear petitions against the advisory.

To address the issue, BBI has suggested that every county should elect a man and woman to the Senate while it has suggested more seats for women in the National Assembly by allowing particular constituencies to elect more than one lawmaker.

“The proposal for election of women senators in every county and in the National Assembly empowers women and solves the gender rule challenge,” said Kitonga. 

As delegates gather to endorse the BBI report, I cannot stop thinking about the input Kitonga could have made in the unfolding law review process.

Rest in peace, Senior Counsel.

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