How to get a new constitution


Once again, there is a deep seated  conspiracy  to deny  Kenyans  a chance to have a new  constitution as proposed  by   negotiators  of the National  Accord on Peace and Reconciliation  meeting under the  chair of former  UN Secretary  General, Kofi Annan.

A new  constitution whose delivery has  been elusive for a generation is  one  of  the  few reforms  proposed  in the Agenda IV  by the  peace  negotiating team that authored  the National Accord  as part of an effort  to calm tempers  and restore confidence  in the  government  and  elected leaders. Kenyans are yet  to recover from the post election violence in which more  than 1,000 people lost lives  and 500,000 uprooted from their homes.

The  existing cracks and cacophony within the  Committee of Experts  tasked to  fine tune parallel drafts  and the hard line  positions taken by political parties  reminiscent  to the  discordant voices heard during the  National Constitutional  Conference  (NCC) deliberations at  Bomas in 2004  are dress rehearsals  for scuttling the process. The positions by yesteryear reformists turned conformists are deliberate attempts to derail the process for a third time.

For  the  experts  to live a  legacy,  they have  to listen to  the  cries of the patient masses and present  at least two  drafts at the referendum. One,  a  cut, copy and paste  of Bomas  with  the  contentious  issues  intact  and  the  revised  or fine tuned   version.  Another option is to ask parliament to ratify the Bomas draft minus the contentious   issues often propagated at funerals, markets and in the media by political leaders.

More time to consult is just one in the many excuses by the turncoats determined to buy time so that   the Accord lapses and the status quo resumes.  A  constitution with a new date  means  loss of power  for the  political elite , fresh elections and the  end  of the  coalition government crafted out  of the  blood  and sweat of  Kenyans fighting  for their constitutional rights.

Time to avoid  the  return to a  status quo is  now  and  there  should  be  more  than one choice from parallel  drafts since one document  is likely  to be rejected  again  in the  referendum. The gullible  public  and civil society organizations  never saw the trap  set on the way to a new constitution  by President Mwai  Kibaki  who  insisted on  presenting one doctored  draft. A similar trap is being set for the electorate and they will fall into it whether they want it or not unless they make their demands known now.

Failure  to heed  the  advise  of those  who cried loud for justice  in the 2005 November referendum  and lost lives  in the  bloody campaigns  in the 2007 general elections  would be   a rehearsal  for  one  of the worst chaos in living memory. The referendum campaign and its outcome dangerously polarized society and set the country into the mood that it finds itself today. 

Kenyans are too familiar with tricks, manipulations and intrigues of the political class when it comes to issues that would benefit the governed. The use of a protégé to challenge the constitutional review process in court after billions of shillings had been spent on the exercise is one case in point. The  disgraced  anti corruption director, retired  Justice Aaron Ringera ruled that  parliament has no authority to enact a  constitution – hence  the presence of  lawmakers  at Bomas  in a process  that sought to replace  the  constitution under  which they were elected was  a betrayal.

If the NCC adjourned sine die were to reconvene, it would do so without MPs. That explains why  legislators  would  not  like  it  to reconvene  or  constitute a  constituent assembly to handle  the review process.

From then on, the  executive  conspired  with legislative colleagues  to reopen the  draft  for circumstantial amendments  which  they  had reason to believe  would  not meet the  approval of the  Kenyan public and  non parliamentary  NCC delegates. The doctored draft was rejected in a referendum.

Better the  devil  you know  than the Angel  you  do not know, goes the saying of the campaign  against reforms  prophesized  by former President Daniel arap  Moi in his last days in office.

The devil Kenyans know is the current constitution and the Angel they don’t know is the proposed draft constitution. The voting against a new constitution did not come as a surprise. He dispersed a delegate’s conference on the constitution a few weeks before he left office in 2003. 

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


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