BY NJOKI NDUNG\’U
As a member of the Committee of Experts, the delivery of civic education has not been painless. The fact that it is a legal document makes it fairly easy for certain persons claiming to be more learned to mislead or misinterpret clauses to wananchi. However, it is possible for each citizen to understand it, if time is taken to read it and if questions and clarifications can be asked of the CoE.
Before any citizen decides whether their vote should be YES or NO, and because the choice is for each individual Kenyan to make, everyone should try out the following as an exercise that will ascertain objectivity and not subjectivity with regard to the Proposed Constitution (PC):
1. Make sure you are reading the correct version. This is the Proposed Constitution as published by the Republic of Kenya on May 6, 2010. It is on white paper and bears the coat of arms. This is important because since the start of this review process in December of 2008, several drafts have been done, each one of them different from the other.
2. In order to understand the Proposed Constitution, one needs first to draw up a list of why Kenya needs a new Constitution. The causes of the Post Election Violence can help with this list. The causes are embedded in the current Constitution.
3. Read the Proposed Constitution, reading articles as a whole. Check whether it addresses the concerns you listed in 2 above.
4. What do you like about the PC? What don’t you like? What do you think should or can be done about it? The Constitution is a document of principles. Implementation of the Constitution is done through legislation. Not everything in the Proposed Constitution is a new provision. Is your concern already provided for under existing law? How has your concern been addressed under the current legal system?
Examples: 1. There have been complaints that international convention and treaties once signed and ratified will become part of our law. This already happens, even where Parliament has not enacted legislation, because the courts do apply them as contractual obligations of the State. It is only that ratification is done by Cabinet and therefore almost secretive. The PC ensures that any such treaty and ratification is presented to Parliament by the President for debate. This means public participation is guaranteed in deciding whether or not to ratify a convention unlike the present day.
Example 2. Questions have been raised as to why S26 (4) regarding the abortion clause includes the words “any other written law”. This is to ensure the inclusion of current Acts of Parliament and subsidiary legislation that may have a direct correlation to clause (2) on definition of life and clause (4). These will include the Penal Code (which provides for criminal sanctions on unlawful abortion), the Sexual Offences Act (provided for treatment of rape victims), The Clinical Officers Act (to amend relevant sections), the Public Health Act, and other laws relating to family planning.
5. Become aware of the environment of the constitutional review. With regard to the content of the draft ask yourself who are the likely winners, who gains from the Draft most? Similarly, ascertain who has the most to lose from the contents of the Draft? This may help you to understand the different positions taken in the debate by national players.
6. Do understand the choice you are to make on August 4; it is not a simple YES or NO question: Kenyans will be choosing between the current Constitution and the Proposed Constitution. There is no third choice. Whichever choice you make, either document can be amended. The current Constitution can be amended only by Parliament. The Proposed Constitution can be amended by Parliament or by popular initiative (any citizen can initiate) or by Referendum.
7. Think through what will likely happen after August 4th if:
* We remain with the current Constitution
* We pass the proposed Constitution
8. Remember. Read for yourself, Understand it yourself, Decide for yourself. Questions and clarifications should be directed to the framers of the Draft, the CoE, who are in the best position to explain the thinking behind each and every article.
This is an exercise for civic education. You will find at the end of the exercise you will have analysed both the current Constitution and laws relating to it, and the proposed one. You will become much more aware of the nature and purpose of the constitutional review. Please do send in any questions you may have on the PC and the CoE will be able to respond promptly on the Capital FM website.
(The writer is a member of the CoE. This article was first published in the Standard).