Experts are working in futility

September 10, 2009 12:00 am

, Retired South African President,  Nelson Mandela treated  his first and only term as a  transition to a  new  constitution for the  independent  nation but the  delivery of this important document  in some  emerging democracies  in Africa  has been elusive and problematic. Kenya is a living example of countless wasted chances of constitution moments including the post election violence peace negotiations and last term of any of its leaders due for retirement.

The fear of adopting the people’s wishes is not without precedent and is always linked to   the fate of constitutional office holders including parliamentarians. But even with the postdating of effective date  and guarantees of continuity  in the  transition provided for in  the  ill fated Bomas  draft, the  document  could  not be delivered for one reason or another.

If it were not  for parochial  political interests together  with the  bungling of the  referendum by the disgraced  Electoral Commission of Kenya (ECK), the country  could have gotten  a new  constitution by the people for the  people  in 2005. The polls authority ought to have weighed the unpleasant consequences of a yes and no vote in a polarised society before it could conduct an illegal referendum. Voting  for  a document  whose contents have been the  subject  of bitter contest was, no doubt , a license to incitement.

There is,  for instance, the  Lancaster House  Constitution  and its revised version known as the  Kenya  Constitution, the  Wako,  Bomas   and  other drafts from  which Kenyans  could  have  chosen  instead of wasting  time  and money to  repeat  an exercise that  would not bear fruit. Nonetheless, the referendum and its outcome caused irreparable divisions that have ran deep and eventually spilled into the chaotic 2007 general elections.

Intolerance and sideshows of the yesteryears have returned to haunt post independence leaders and denied their constituents a   chance to make their own constitution in 50 years.

It can be recalled that the  nationalists in the  struggle for  independence  could  not agree on a constitution   until  the  colonial master  intervened  with  an  Independence  Treaty that later   had  to be  changed  and  adopted  as the   country’s  supreme law. 
Given the lack of political  will and the  acrimony  surrounding  the  constitution making process  in peace time, the  Committee of Experts  on  Constitutional  Review  would not  make any meaningful  difference from their predecessors  in attempts  to come up  with  a widely  accepted  constitution. Since  there is  enough material in the  archives  on  the current   Constitution of  Kenya,  the Bomas  and Wako  drafts, there  should  be  no point  looking elsewhere  for views.

As a matter of urgency and national concern, the  NCC delegates  minus parliamentarians   should be  recalled for purposes of  deliberating  on  contentious issues  raised by the executive or  else   two  or more documents  should  be presented  to the  referendum for adoption.

It is  logical, therefore,  for the Committee  to   avoid  above the  law leaders, political party barons and  their ilk  because of their past  role  in  derailing the  previous exercise. The leaders who do not respect their party constitutions have no business in contributing to the making of the supreme law. The rule of law is a meaningless expression where constitutions are treated as   mere pieces of paper as exhibited in legislative debates and political rallies.

On March 15, 2004, during the National Constitution Conference (NCC) at Bomas of Kenya, delegates including members of parliament concluded deliberations, sealed the draft and adjourned sine die. Contrary to the Constitution of Kenya Review Commission (CKRC) Act,  the ruling  class ignored the rules of   procedure  and reopened the  draft  for  circumstantial amendments.

Parliament was expected to ratify   the document as drafted without much ado and debate but that was not the case. The proposed second chamber, National Remuneration Commission, power and economic devolution were expunged from the document presented to the referendum in 2005. The infuriated and betrayed public rejected the doctored draft in a referendum.

President  Mwai Kibaki on a  platform of  constitution delivery within 100 days upon assuming office trounced opponents  in  hotly contested elections. It is seven years since he got to power and the delivery of the document is as elusive as ever.

Together with the promulgation of pluralistic system 17 years ago, agitation for a new constitution started in earnest but its delivery has not been easy to say the least. Views collated and compiled by the defunct CKRC are gathering dust in the shelves and here we are asking experts to work on a new constitution. What a waste of time and public funds on a futile exercise.

(The  writer  is  a former cabinet minister and  secretary general of two major political parties including the oldest organization, Kenya African National Union (KANU). Email [email protected])


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