Kenya constitution road gets bumpy

March 12, 2010 12:00 am

, NAIROBI, Kenya, Mar 12 – When the Parliamentary Select Committee came out of Naivasha with a ‘politically negotiated Proposed Constitution,’ all of us cheered on. But it seems we celebrated too early.

The Committee of Experts was not going to allow politicians ‘take their opinion for granted.’ They went ahead and amended the “politically correct” draft and as such touched a raw nerve. .
The Orange Democratic Movement-Party of National Unity feud is also back, and the otherwise expected final smooth road to a new Constitution has suddenly become bumpy and full of potholes. The now cancelled MPs retreat in Naivasha goes on to confirm that the stakes are high.

I would have called on the Church to pray for Kenya, but they too are in this ‘circus:’ they will not allow the Kadhis courts and any sentence that may be exploited to allow abortion except on medical grounds.

The PSC, being the organ of the Parliament leading the Constitution review process finds itself at the middle of the storm. Reporter Anthony Kagiri spoke to PSC Vice Chair Ababu Namwamba on the issue:

Q. As it stands MPs appear divided right in the middle. Isn’t this a cause of worry for Kenyans?

A. Kenyans should not be worried because as I have said before Constitution making is not an easy process. It is not a church service or a wedding ceremony. People must disagree over this process owing to its gravity and implications. We are remaking Kenya and reconfiguring how we are managed and to assume it will be simple and direct is to be simplistic. It should not really surprise anybody.

Constitution making is about staking but then a spirit of give and take follows. Kenyans should keep the faith and look forward to unanimity of purpose amongst the political leaders.

Q. Earlier on we had three contentious issues but now new ones have come up including abortion, Kadhis Courts and the number of MPs. Are we backtracking?

A. I don’t think we are backtracking. Certainly not. We are moving forward only that every position that is adopted raises further debate. When you adopt Kadhis Courts for example you appease the Muslims but disappoint the Christians.

What we must guard against however is to make this a continuous endless debate. We must end it at some point by realising that we shall not have a perfect Constitution. There is no human enterprise that can be perfect and anyone with that kind of thinking is having a pursuit in vain.

Secondly this Constitution cannot contain everything. A Constitution is supposed to be a merely the minimal framework for the management of state affairs. We need a framework that is representative and provides us a template for a new beginning.

Q. Do you then support those who say we pass it as it is and make amendments as need arises?

A. Let us not imagine that the Constitution will be cast in stone. The Constitution always provides a mechanism for its growth through amendments. If you look at the American Constitution born out of great controversy for example it has been improved numerous times along the way in the last 200 years.

Q. The Church leaders have argued that although we cannot get a perfect document, we should have some irreducible minimums.

A. I agree with them but then the minimums must not be pegged on interest groups. They should not be to satisfy the church, civil society or the politicians. Let us develop minimums for a united Kenya. That is what we shall be seeking in Naivasha.

Q. With the continued haggling over demands, do we still have hope to complete this process in unity?

A. Kenyans should have the faith that at least the PSC has provided a good momentum of consensus building. The rest of Parliament should follow suit and keep this momentum growing.

Q. This process seems to be at the hands of the politicians. Does the common mwananchi really have a role to play?

A. What I will urge Kenyans to do is to remain vigilant because we need that continued public pressure. We need a reminder to the political class that the country has waited long enough and we need to complete this process now.

Parliamentary debate on the Proposed Constitution commences next Tuesday and a showdown is almost inevitable. ODM is supporting the proposed draft entirely while PNU is demanding for amendments to reinstate clauses agreed on by the PSC in a January retreat but were removed by the Committee of Experts.

PNU wants the relatively powerful House relegated to a Lower House, the fresh vetting of judges removed and the requirement that the President consults the Prime Minister in appointing state officers to new offices after the enactment of the new law struck out. Another group of MPs want the counties increased from 47 to 74 ‘to ensure equal representation.’


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