It is now becoming apparent that the two main issues that we are concerned about are the Kadhis' Courts (Art. 170) and protection of the right to live (Art. 26). One of the ill-thought statements that have been made by the Prime Minister is that the Proposed Constitution is 95% good and that the remaining 5% can be 'fixed' after the Referendum. This state of affairs is untenable and Kenyans need to understand the reason why this nation is in need of a new constitution and that the Proposed Constitution of Kenya published by the Attorney-General in April 1st 2010 is the best that we shall ever get.
The Bomas Draft was rejected mainly because the A-G made unauthorised changes which distorted the vision of the Constitutional Conference that sat at the Bomas of Kenya. The subsequent referendum campaign pitted the Orange versus the Banana and the result was the death of the NARC coalition and the violence of 2007/08.
We have an opportunity to re-write our chequered constitutional history with the Proposed Constitution of 2010. We must seize the day! The REDS have based their opposition to the proposed draft largely on the clauses dealing with the Kadhis' Courts and abortion. The GREENS, on the other hand, declare that these two clauses are not the obstacles that they have been made out to be.
It is important to note that the Constitution of Kenya has been amended many times since Independence, and that on many occasions, the amendments were meant to circumvent the rule of law. For instance, President Kenyatta had the constitution amended so that the President could pardon a person convicted of an election offence. In this case, he brow-beated Parliament to amend the constitution so that he could pardon Paul Ngei who had been convicted of an election offence so that he could also nominate him to Parliament and appoint him a Cabinet Minister. President Moi used the fear and chaos that surrounded the nation after the 1982 coup attempt to amend the constitution with the insertion of Section 2A which denied Kenyans a right to self-determination by declaring KANU the only political party. In one fell swoop, the party and the state became one and they were personified by President Moi, who would rule for a further 20 years as an absolute dictator, making decisions without recourse to any other authority. No one doubts that these amendments were made without the active direction of the president.
The Constitution of Kenya bears no resemblance to the Independence Constitution. It has been used to brow-beat political opponents, to detain them without trial and dare I say, to execute men and women without judicial authority. Mr. Justice Johann Kriegler (Ret'd), Justice Phillip Waki and Prof. Phillip Alston have written detailed reports of the human rights abuses that have taken place as a result of the flawed constitution that we now have. No one is saying that groups like the Mungiki should be free to extort and murder at will, but the rule of law that all civilised government agree to abide by state that even criminals have rights which the state is under an obligation to protect. In every conceivable sense, this constitution is flawed and it must be replaced. The financial scandals that have bedevilled the Moi and Kibaki regimes have been exposed but no prosecutions have taken place because it is the Executive that controls prosecutions in this country. When President Kibaki re-appointed Mr. Justice Aaron Ringera (Ret'd) as the Director of the Kenya Anti-Corruption Commission, he did so despite the clear provisions of the law secure in the knowledge that he would not be impeached.
The Proposed Constitution proposes a system of government that provides checks and balances among the 3 arms of government, the Executive, the Legislature and the Judiciary. Each is independent to the extent possible and each has the authority to reverse the actions of the other if they happen to overstep their boundaries under the law. It proposes a Bill of Rights that has iron-clad protections against the overmighty tendencies of the state, especially those of the Executive.
Thus far, no one has made serious challenges against the chapters dealing with the Preamble, Citizenship, Land and Environment, Leadership and Integrity, Representation of the People, Devolved Government, Public Finance, the Public Service, National Security, Commissions and Independent Offices, or any of the remaining chapters or schedules. It is the Bill of Rights, the Executive, the Legislature, and the Judiciary that are in doubt and only so because of the two questions of protection of the right to life and the Kadhis' Courts.
This debate should be based upon a comparison between the Constitution of Kenya as last amended in 2008 and the Proposed Constitution. Such a comparison will show that the Proposed Constitution is a superior document as opposed to the extant one. The GREENS, through the President and the Prime Minister, are misleading the nation when they declare that 'contentious' issues will be addressed after the Referendum. How they propose to address these questions once the document is adopted is anyone's guess for they have not provided a road-map to such revisions or amendments as may be required to make the document as wholesome and acceptable to the REDS.
The process of amending the Proposed Constitution is laid out plainly in the draft itself, and if the President and Prime Minister propose to use the procedure as laid down they should be honest enough to say so. The REDS on the other hand, are also misleading the nation by claiming that it is possible to amend the draft at this late stage in the day, when the Referendum is only months away. When the Constitution of Kenya Review Act was enacted in 2008, no one could have anticipated that the contentious issues identified by the Committee of Experts could omit such fundamental questions as to abortion or the Kadhis' Courts. They seem to have forgotten the rancour these questions raised during the Bomas sittings and they seem not to have appreciated the passions that would be raised, especially by the religious right, if they were not addressed satisfactorily.
We find ourselves at a cross-roads. Should the REDS win, Kenya will be the loser as the current constitution is the worst possible basis for governance going to the 2012 General and Presidential Elections. Should the GREENS win, it will be at the expense of passionate questions that have been legitimately raised about the process that led to the adoption of a new constitution and they may not be willing to put their faith in government to address those selfsame issues.
The solution should be simple, but it will not. The REDS and GREENS have entrenched positions and they refuse to countenance that the other side may have legitimate reasons for their positions. The Government-Clergy Committee should be converted into a long term committee to address the effects of the Proposed Constitution after it is adopted. Its mandate should be to draw up a comprehensive programme of action that will bring together all the key stakeholders so that it should be possible for the adopted constitution to be amended to the satisfaction of all Kenyans. Statements to the effect that portions of the draft are 'bad' and that they will be 'fixed' later without stating how are misleading at best, and dishonest at worst.
We should all pull together to ensure that the Proposed Constitution is adopted and we should also pull together to ensure that the remaining contentious issues are addressed judiciously and expeditiously. This is the only way the a re-awakening of the nation can be accomplished in a spirit of togetherness and unity of purpose. Otherwise, it really doesn't matter if we have a new constitution, for a section of Kenyans will always feel that they had been disenfranchised. That is a recipe for chaos come 2012.
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