Does the fact that you were a human-rights campaigner or a political reformer make you fit to hold high public office? Or turn you into a constitutional expert? That record, so far, has been disappointing. Let us take the cases of Kiraitu Murungi, the Minister for Energy and formerly the Minister for Justice, and Prof. Kivutha Kibwana, the former Minister for Environment and former MP for Makueni. Mr. Murungi was one of the faces that coalesced around the anti-KANU agitations in the early '90s, earning President Moi's wrath and was eventually forced into exile in the USA. He ended up taking a Masters Degree at the prestigious Harvard University. When NARC came to power in 2003, he famously asked Moi to sit back and watch what true governance was all about. In short order, he led the walk-out from the Bomas talks, was linked to the Anglo-Leasing scandal and then came Triton. He has protested his innocence all along, but he has been unable to prove one way or the other that he understands constitutional law, appreciates human rights or the complete overhaul of the political structures of Kenya.
Prof. Kibwana is a respected constitutionalist. As the MP for Kilome, even his enemies will admit, that he did a lot for the people of Makueni. However, as a minister in President Kibaki's first Cabinet, he proved a disappointment to his friends in civil society. He seemed to abandon all tenets of fair play and instead became a champion for the excesses of the Kibaki government. In his blind support of the policies of the government, he failed to address the systemic weaknesses of the state and ended up an apologist for the crimes that were committed by his cabinet colleagues. It is right that despite his perceived achievements in Makueni that his people showed him the door when the 2007 election results were announced.
The implementation of the Constitution is facing more challenges than Kenyans were prepared for. The current Members of Parliament wish to play a leading role, or a commanding one, depending on where you stand. As a consequence, they have taken political scalpels to the Constitution in the hope that they can surgically reduce the importance of various Commissions and Independent Offices in the implementation of the Constitution. Take for instance the heat generated by the proposed boundaries review by the IIBRC. The debate has moved on from the question of whether or not Kenya actually needs an additional 80 constituencies to the question of whether or not certain political powers are set to benefit from the proposed distribution of the new political units. 11 MPs have gone to the High Court to prevent the publication of the Commission's report, because their 'Constitutional rights' may be, or have been, infringed. But as political commentators in this Sunday's papers allude, their complaints are not constitutional, but political based on their fears that their ethnic communities are perceived as having 'lost' in the process.
Parliament is about to vet the nominees for the Commission for the Implementation of the Constitution, the Commission on Revenue Allocation, and the Judicial Service Commission. Names that are being bandied about include Prof Kibwana's, who just so happens to be a political advisor to President Kibaki. Others include Koki Muli, a well-known reformer and Mutakha Kangu, an advisor to the ODM party headed by the Prime Minister. No one denies that these men and women are intelligent and experienced. What we have not done is to debate whether they are the right people to head or join these important implementation Commissions. We know almost next to nothing about their constitutional interpretation of the Bil of Rights or the role of the state in our day to day lives.
In the US last week, a New York federal court convicted Ahmed Ghailani on one charge of conspiracy in the 1998 bombings of US embassies in Kenya and Tanzania and acquitted him on the remaining charges of conspiracy to commit murder because the testimony of one witness was obtained after Ghailani was tortured and gave up the name of the witness. US lawyers are now debating whether or not the constitution prevents the courts from relying on reliable testimony that has been obtained through torture, invoking the 4th Amendment against unreasonable searches and seizures and the 6th Amendment against self-incrimination. In contrast, the constitutional philosophies of the candidates mentioned in our newspapers are unknown, if they exist at all.
When Kenyans were 'renditioned' to Uganda following the World Cup bombings, very few of my learned seniors explored the limits of Constitutional provisions in this matter. It was left to an NGO, the Kenya Human Rights Commission, and the government's own KNHCR, to issue statements over the matter. In fact, the KHRC went to court over the matter and obtained a judgment stating that the Government of Kenya must follow the due process of law before allowing its citizens to be extradited to foreign countries to answer to criminal charges. The police so much as admitted that renditions are a routine matter if a suspect is detained within a 100km corridor on either side of the border and that the police chiefs of the East African states co-operate on this issue. In fact, additional sources indicate that the Government of Kenya, through its intelligence and police agencies, regularly co-operates with other law enforcement and intelligence agencies over the matter of how to deal with so-called terror suspects.
As a consequence of the apathy demonstrated by Kenyans to interrogate the constitutional credentials of candidates to these Commissions, we are left to discover the extent of their philosophies only after they have assumed office and some controversy arises during the course of their work. If Andrew Ligale had been properly vetted, by both the public and the National Assembly, we would not find ourselves in the situation we are in today regarding the delimitation of the 80 new constituencies. His political philosophies would have been addressed and his competence to head the IIBRC determined based on additional criteria. As a result, we are left to pick up the pieces of his decision and the matter has now become a political football in the field of inter-ethnic rivalry that so dominates Kenya politics. Will this be the fate of all Constitutional Commissions in the future? We can only answer this question in the negative if we take a more than casual interest in all the relevant qualifications of the candidates to these offices. Otherwise, we will be left asking "how did so-and-so end up in this or that Commission". Kenya will be the poorer for it.
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