Uphill task for law review experts


By Joseph Kamotho

Handlers of the negotiated Agenda IV  under the chairmanship of the  former UN Secretary General, Kofi Annan  in the  aftermath  of election violence  have an uphill task  to overcome  in a society inflicted  with  deep rooted  ethnicity  and related vices. Unfortunately, hard line positions by forgetful and hypocritical  political leaders   and their parties of choice are notable obstacles  to the restoration of  peace  that is  vested  on the  reform agenda  that includes  delivery of a new  constitution.

A parallel document popularly known as the Wako draft was rejected in the referendum. Side shows stood on the way to delivery of the new constitution concluded and sealed in March 2004 at the Bomas of Kenya.  Similar issues have since resurfaced before the Committee of Experts tasked to fine tune parallel drafts before presentation to a referendum.

With  the  so called  contentious issues  reintroduced into the  long awaited draft, the  likelihood of  the document  seeing  the light of day is  remote. And should the document be presented to a referendum, the pre and post election wounds would be re-opened. With the  support of leaders, an idle   group has emerged  that  conditions  the ratification  of the  draft on additional constituencies  in regions with higher  population density and another wants geographical sizes to be  the criteria for determining  electoral and administrative units.

At the  rooftops and in broad daylight, leaders  shout loudly  how Kenyans badly need reforms but in  private the  self same  facilitate   discordant voices against  the  necessary changes  that must come  before  the next general elections to avoid  the recurrence of chaos. The fear of  an earlier polls  could largely be  the reason  for  opposition to  the   timely delivery of the supreme law  that inevitably   has to bear a  new date Already, elected leaders don’t want  to go to the polls under the new law  before their term ends.

The problem in the country is not a bad constitution but ill-mannered political class and malice towards meaningful and genuine desires for change. That is understandable. The political leaders are key beneficiaries of the problematic hybrid system and its inherent ills.

The abolition  of a parliamentary system  and scrapping of the  second chamber  in the original Lancaster House  constitution  for a hybrid was  the  genesis  of governance woes that  have eroded  the public confidence and democratic tenets.

Be it hybrid, parliamentary or presidential system of government  , the Committee must, as a matter of necessity, separate government from state with separate office holders was the case  at independence and in serious democracies.

Until and unless the  three state organs  are independent  and political leadership divorced from the  government  and state, the  new  constitution would be  a  worthless piece  of  paper. For purposes of checks of executive and legislative excesses, a second chamber is a must in the new law.

Party barons who also double up as members of parliament and cabinet ministers are in the habit of favouring their sponsoring parties with public appointments including politicizing the security forces. The same goes for political favours that more often than not go to the clan or the tribe of the chief executive.

The foregoing being the guide, justice cannot be done and be seen to be done and the opposition has to live in fear of retribution. The fate  of the  country  is  in the hands of these  commissions  who  have suddenly  realised that their  mandate in a ceasefire situation  is  a  tall order.

If the experts  are  to leave  a legacy  and match public   expectations, they would  do  Kenyans proudly ignoring  the wishes  of  busy bodies. This time round, the governed expect the best from the people mandated to seek truth, justice, draw boundaries and handle elections.

Utmost  caution must,  therefore, be taken  through  a  careful postmortem  on why a referendum   campaign was explosive, divided  communities and became  a  reference  point  in the  2007   general elections.

(The writer is  a former cabinet minister and national party official of two political  parties)

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