NAIROBI, Kenya, Jan 12 – Kenya is at the threshold of history; a constitutional moment.
But as Kenyans reflect on the constitutional review journey, jitters are aroused by memories of the hostile 2005 referendum. The belief was there, we had the resolve but we lost it at the edge. The process left us worse than its euphoric clamour found us.
The referendum campaigns were the defining moment. It was a double blow for the nation, leaving it divided along tribal, regional and religious lines and more crucially failing in the bid for a new law.
Fast forward to 2010 and the rekindled Constitution quest is gaining momentum. Our plan this time is: pick up from the Bomas draft, take the various documents and synthesise them into one agreeable document. We all hoped that we could produce a document accepted by the majority but the verdict of the Committee of Experts says we are ‘equally divided’ on the main contentious issue, the Executive.
To avert the disastrous 2005 referendum a cross section of Kenyans is warming up to the idea of the presentation of two drafts to the vote, one on the Presidential system and the other on the Parliamentary system. This proposal was laid before the Parliamentary Select Committee at the time of enacting the amendment law, but the team discarded it through what its Chairman Abdikadir Mohammed says was merited discussions.
Capital News caught up with Mr Mohammed to discuss the proposal.
Q. What is the possibility of having a Yes-Yes referendum?
A. This is possible but first we would have to change the law and that has implications because we already have timelines on the process. This was a proposal from the Law Society of Kenya but we did not at that time think it was a good option. There were some risks we saw at the time.
Q. What risks did you see?
A. What most people don’t grasp is that when you have two ‘Yes’ options you equally have two ‘No’ options since if you vote for one you reject the other. With this you will have two parallel teams each campaigning for each version.
At our present scenario the ODM will champion its Parliamentary system while the PNU will be campaigning for the Presidential system. The risk therefore is that you will have two parallel universes each popularising ’its constitution.’
Q. Against these risks the choice you made was based on hope of consensus which has not happened?
A. Our hope was we would through the Committee of Experts agree as politicians and present to the public a united front as opposed to going out there and campaigning for what either groups feel is the best system.
But be that as it may, the ‘Yes-Yes’ referendum is one solution out there and it is one of the things we will be discussing in our retreat next week.
Q. From the fact that Kenyans are equally divided do you think the win-win referendum is merited?
A. It is likely we will have a likelihood that there could be a very close outcome – say 51percent versus 49 percent – and immediately you would have half the country saying that is not their Constitution while the other side would be feeling they own the Constitution. And the Constitution ought to unite us rather than divide us.
Secondly the risk of course is that you can divide the country from then on to the next General Election. So at the time we made the law we felt that risks inherent in having two drafts were far much more than the opportunity in the ‘Yes-No’ arrangement.
Q. With the political differences do you think we are likely to gain the consensus we need in the PSC?
A. Everything is open for dialogue, not a debate. I say dialogue because we are not interested in anyone winning like in the case of a debate. We are interested in moving from conflict through compromise and into consensus. The key is that we must be ready to give and take and we must understand that we are in this together and we will either win or lose.