, 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.