Retired South African President, Nelson Mandela treated his first and only term as a transition to a new constitution for the independent nation but the delivery of this important document in some emerging democracies in Africa has been elusive and problematic. Kenya is a living example of countless wasted chances of constitution moments including the post election violence peace negotiations and last term of any of its leaders due for retirement.
The fear of adopting the people’s wishes is not without precedent and is always linked to the fate of constitutional office holders including parliamentarians. But even with the postdating of effective date and guarantees of continuity in the transition provided for in the ill fated Bomas draft, the document could not be delivered for one reason or another.
If it were not for parochial political interests together with the bungling of the referendum by the disgraced Electoral Commission of Kenya (ECK), the country could have gotten a new constitution by the people for the people in 2005. The polls authority ought to have weighed the unpleasant consequences of a yes and no vote in a polarised society before it could conduct an illegal referendum. Voting for a document whose contents have been the subject of bitter contest was, no doubt , a license to incitement.
There is, for instance, the Lancaster House Constitution and its revised version known as the Kenya Constitution, the Wako, Bomas and other drafts from which Kenyans could have chosen instead of wasting time and money to repeat an exercise that would not bear fruit. Nonetheless, the referendum and its outcome caused irreparable divisions that have ran deep and eventually spilled into the chaotic 2007 general elections.
Intolerance and sideshows of the yesteryears have returned to haunt post independence leaders and denied their constituents a chance to make their own constitution in 50 years.
It can be recalled that the nationalists in the struggle for independence could not agree on a constitution until the colonial master intervened with an Independence Treaty that later had to be changed and adopted as the country’s supreme law.
Given the lack of political will and the acrimony surrounding the constitution making process in peace time, the Committee of Experts on Constitutional Review would not make any meaningful difference from their predecessors in attempts to come up with a widely accepted constitution. Since there is enough material in the archives on the current Constitution of Kenya, the Bomas and Wako drafts, there should be no point looking elsewhere for views.
As a matter of urgency and national concern, the NCC delegates minus parliamentarians should be recalled for purposes of deliberating on contentious issues raised by the executive or else two or more documents should be presented to the referendum for adoption.
It is logical, therefore, for the Committee to avoid above the law leaders, political party barons and their ilk because of their past role in derailing the previous exercise. The leaders who do not respect their party constitutions have no business in contributing to the making of the supreme law. The rule of law is a meaningless expression where constitutions are treated as mere pieces of paper as exhibited in legislative debates and political rallies.
On March 15, 2004, during the National Constitution Conference (NCC) at Bomas of Kenya, delegates including members of parliament concluded deliberations, sealed the draft and adjourned sine die. Contrary to the Constitution of Kenya Review Commission (CKRC) Act, the ruling class ignored the rules of procedure and reopened the draft for circumstantial amendments.
Parliament was expected to ratify the document as drafted without much ado and debate but that was not the case. The proposed second chamber, National Remuneration Commission, power and economic devolution were expunged from the document presented to the referendum in 2005. The infuriated and betrayed public rejected the doctored draft in a referendum.
President Mwai Kibaki on a platform of constitution delivery within 100 days upon assuming office trounced opponents in hotly contested elections. It is seven years since he got to power and the delivery of the document is as elusive as ever.
Together with the promulgation of pluralistic system 17 years ago, agitation for a new constitution started in earnest but its delivery has not been easy to say the least. Views collated and compiled by the defunct CKRC are gathering dust in the shelves and here we are asking experts to work on a new constitution. What a waste of time and public funds on a futile exercise.
(The writer is a former cabinet minister and secretary general of two major political parties including the oldest organization, Kenya African National Union (KANU). Email firstname.lastname@example.org)