Time to deliver the Wanjiku baby is now

June 28, 2009 12:00 am

, NAIROBI, Kenya – A woman in labour who stops the delivery  of a baby is a murderer  while  a circumciser who has not undergone the painful traditional ritual, and instead  frowns before a surgeon with 1001 excuses of why he should not be subjected to the cruel operation is a celebrated coward.

Forty years later, Kenyans said  in vain that it is the turn of abortionists to deliver the baby and evasive mutilators to face the knife. None of these listened. Instead, they resisted the attempts  in a   reverse gear. These scenarios aptly describe the cowardice of leaders who bear the blame for  mutilating beyond recognition the Independence Treaty left behind by the British and failed to  deliver a  replacement  in their tenure because of colour prejudices.
However, Kenyans are used  to defiance and resistance. Now, the process to deliver the supreme law is in an overdrive gear not because the leaders want one soon.

Circumstances dictate that Kenyans should have it within a time frame – thanks to international intervention. Consequently, one of the items in the Agenda IV brokered by the international mediator, Kofi Annan, is a  delivery of a  new constitution before long.

Annan’s  services  were enlisted  as part of a reconciliation  in a  country  rocked  by senseless killings  provoked  by premature tallies of presidential election results in 2007. A postmortem on post election violence found out that part of the problem was unfulfilled pledges, one being delivery of a new constitution.

Parliament has reluctantly  picked  up  a team of experts  to handle the  fine tuning of parallel  drafts  whose contents  have been  the  bone of contention  between idle   lawmakers  and the  general public for nearly two decades.

While the general public lauds the legislative move, they still have a quarrel with the failure of the legislature to spell out the post implementation role the experts would play in the transition.  It is logical that experts stay on to ensure that all the Bills generated by the  changes in the draft  are enacted into law.

A ten year election  ban  on  committee members  should be  a logical condition but because the  law  is  silent on that, the experts will be free to contest elections under a constitution they will have prepared. Had we gotten the Bomas draft, Patrick  Lumumba  could  have   stood  for  elections  under that  in 2007. Indeed, he stood under the  current  constitution. 

First  and foremost, the  committee should  address the electoral process before embarking on  anything else if peace is  to be restored.  They  should  be cognisant of the fact that Kenyans are  where they are  because of questionable election results. Without radical changes in the electoral laws, a recurrence of a  worst  violence cannot be ruled out in future polls.

Now, not tomorrow, a law should be changed to de-link presidential, parliamentary and civic elections to avoid the lingering tension and manipulations by the Executive. We share the view of the International Commission of Jurists (ICJ) that proportional representation should be given  a  chance as  a remedy.   
To deter movements of rejects from one party to another, party nominations and repeats should be conducted on  the same day  by the Electoral Commission. Sponsoring parties should be empowered to recall wayward leaders.

A Supreme Court to handle constitutional disputes should also be incorporated in the draft.  The Chief Justice  currently handles  constitutional cases  on an  ad hoc  basis.

The foregoing proposals  were  incorporated in the draft that never lived to see the light of day. The  defunct Constitution of Kenya  Review  Commission  (CKRC) prepared a  draft  and  the  yet to be dissolved  National Constitutional Conference  (NCC),  composed of amongst others, members of  the  ninth parliament deliberated on the  document.

At the lavish resorts,  political leaders reopened and  amended  the  CKRC draft.  Amongst the  circumstantial  changes were  the expunging of the second chamber, devolution of the executive authority and national remuneration commission.  The doctored document  was rejected in the acrimonious 2005 referendum. There is no law on a referendum in Kenya today.

Many  share  in the  doubts  that  even the experts, like  their  predecessors,  would not come up with a meaningful constitution  because personal  and  trivial interests still linger in the air  and could  find their  way  in the  document.

Going by the events of the past, the ruling elite are not for a new constitution otherwise they could have called for the reconvening of Bomas IV to deliberate on the contentious issues that are often  detected by only a clique.

The writer is  a former cabinet minister and secretary general  of two major political parties  including former ruling party, Kenya African  National Union.


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