NAIROBI, Kenya, Jan 8 – If Kenyans fail once again to get a new Constitution, the Executive and the Legislature will share the blame. The two institutions have manifestly betrayed the trust and confidence of the population whose quest to chart out a national destiny has been thwarted by self greed.
Despite the shortcomings, the fate of Harmonised Draft Constitution still lies in the hands of lawmakers that are supposed to propose and table amendments before the legislature for approval before the Committee of Experts on Constitutional Review (CoE) puts final touches. However, the conditions for the incorporation of legislative amendments are so stiff that a consensus is not possible in the tribally divided Parliament.
It is in light of the abuse of Oath of Allegiance and opportunity to add value to the constitutional review process that conditions were to be set in the law creating the Committee out of the ashes of the post election violence that left many dead and several thousands displaced. The changes removed ambiguities in the Constitution of Kenya Review Commission (CKRC) Act that gave the Ninth Parliament a blank cheque to play about with the Bomas draft that had to be rejected in an illegal referendum.
It also emerged that Parliament also participated in an illegality by getting involved in a referendum. Referendum is now legal as lawmakers are distanced from active participation in the replacement of a Constitution under which they were elected and swore to protect.
Section 47 (A) states that the sovereign right to replace the Constitution vests collectively in the people of Kenya and shall be exercisable by the people in a referendum. The draft Constitution replacing the Constitution introduced into the National Assembly, no alteration shall be made in it unless such alteration is supported by 65 per cent of the votes of all Members of Parliament.
Active participation in the previous process and subsequent reopening of the document for amendments were fatal mistakes that cost the country dear in one of the unforgettable acrimonious campaigns. These ugly events in the referendum campaigns spilled into the 2007 General Election that turned chaotic and bloody. Lessons from the post election violence never pricked the political class and their cronies.
Time and again, members of the Executive and the Legislature have been reminded of their governance and legislative roles outside the Constitution overhaul. Legislators as the guardian angels of the sacred document cannot act as chief campaigners against the same under which they have served for nearly half a century.
Long before the first process took off in 2003, political pundits sounded alarm bells on the conflict of interest of Legislators and the Executive. The High Court echoed the same views in a landmark ruling on the role of legislators. Retired Judge, Justice Aaron Ringera categorically ruled that Parliament is not an organ of review and cannot participate in the replacement of a Constitution under which they swore to protect and defend.
Silence of the law on the role makers of the Constitution would play in the post ratification of the document leaves a lot to be desired. No law bans CoE like their Constitution of Kenya Review Commissioners (CKRC) predecessors from contesting elections under the document in preparation Kenyans have not forgotten that former delegates at the National Constitutional Conference and Commissioners including Secretary to the Commission contested the 2007 elections which could have been held under a new Constitution they had prepared.
The logical thing that should have been done on the way to a search for serious people to deliver a new Constitution could have been a ban of lawmakers and any other participant from standing for elections for a period of time under the Constitution they have made.
The road to a referendum sometime this year is a bit rough for the jokers of the yesteryears who frustrated the making of the supreme law whose delivery promises to be controversial and elusive as ever.
(The writer is a former cabinet minister and top national official of two major political parties, KANU and LDP. Email: kamothojj@gmail.com)
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