NAIROBI, August 24 – Kenya was recently privileged to hold the Regional Conference on Constitutional Democracy in Africa in the 21st century.
The three-day conference staged in Nairobi attracted high profile lawyers, constitution professionals and experts from different nationalities, among them representatives from Africa, Europe and the United States of America.
It came at the right time, as Kenya prepares to delve into the essential process of constitution making, with 20 years of ups and downs and little to show for it.
In fact, the Attorney General has described the process as ‘bumpy, rocky and discouraging’.
Should Kenya decide to practically apply the recommendations and considerations of the conference in constitution making, the country could forever be proud to have a solidifying document that binds the country together in peace and unity.
At the meeting, former US Senator Bob Krueger gave his experience as the US Ambassador to Burundi during the 1994 genocide.
His story told of the dire consequences of ethnicity – openly demonstrated – riveting delegates’ ears to tales of Tutsis slaughtering Hutus.
Krueger’s story raised a host of questions. First, why would a citizen rise up against his own countryman? Who was in charge? Where was the authority? What did the neighbouring countries do and what of the international community?
Unfortunately, neither Kenya, Tanzania, nor any other country intervened. Burundians went on with the slicing and hacking to death of men, women and children until they stopped.
The peril of tribal conflict is stark and atrocious images of dead people slaughtered like animals cling to the minds of any nation that forgets the meaning of peace.
Ethnicity and tribalism became the most important topic of discussion in all the thematic group sessions during the three-day event.
If Kenya puts into practice the words of advice offered, the constitution would be unity oriented cutting across the tribal lines that have been blamed for the post election violence.
Systems of governance
Since independence, Kenya has adopted the Presidential system of governance except in 1963 when it had a Parliamentary system just for one year.
In February this year, a coalition government was formed.
The main task will be for people to look at the gains and fails of a Parliamentary system, which creates two centres of power; a Presidential system where the President is the Head of State and government; or a hybrid system that is a combination of the two systems.
Kenya will also have to look at the independence of the judiciary and at the same time make it accountable to counter complaints raised in the country.
Undoing historical injustices, land issues, equal sharing of resources and opportunities, and the consideration of affirmative action and marginalised groups should also be reflected in the new constitution.
The document should also be one that recognises and respects the local and international values of United Nations conventions and other international laws.
The conference further emphasised on promoting democracy, upholding human rights, and protecting economic values.
During the opening and closing of the convergence, the government once again assured of its commitment to complete the constitution within one year.
However, according the National Reconciliation and Accord Act, the coalition comes to an end once a new constitution is in place.
So will the country receive a new constitution in the next four years, or will the coalition be broken?
The Law Society of Kenya also views the one-year duration as a contradiction of the assurance that the coalition government will hold for five years.
Moreover, as the country approaches the important process, the Prime Minister is hoping that there will be a team of experts involved to tackle the contentious issues that plagued past constitution review efforts. He felt there was no need of collecting views from the people all over again.
The conference offered Kenya a very strong basis, such that if adopted, it would no longer sing the never ending song entitled, ‘making a constitution’.