MR. DONALD KIPKORIR IS WRONG

I wish to respond to Mr. Kipkorir’s commentary (“Proposed law has good provisions, but therein lie clauses

that may destroy us”, Sunday, 23^rd May, 2010) in which he makes alarmist statements that he should know are unfounded and unwarranted. I have enumerated them below.

Do Kenyans want to surrender their sovereignty to international treaties and covenants?

The Preamble to the Proposed Constitution states in paragraphs 3 and 7 thus: “PROUD of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation” and “EXERCISING our sovereign and inalienable right to determine the form of governance of our country and having participated fully in the making of this Constitution” (emphasis mine).

Article 2 (1), (5) and (6) read: (1) This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of Government; (5) The general rules of international law shall form part of the law of Kenya and (6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution (emphasis mine).

Article 94(1) reads: “The legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament” (emphasis mine).

Mr. Kipkorir, as an advocate of the High Court of Kenya, must know that ratification of treaties and covenants is a function of law-making, a function that is explicitly reserved for the Parliament in the Proposed Constitution. He is wrong in proposing that this lawmaking function will somehow be diluting our sovereignty by the fact that international treaties and covenants will be ratified by Parliament. He forgets to mention that even where Parliament ratifies a treaty or covenant, the power of the judiciary to determine whether the ratified treaty or covenant has contravened the provisions of the Constitution. In other words, if the treaty of convention is ultra vires the Constitution, it will be struck down and can never be enforced in Kenya.

For example, he states that “In September, we will send Kenyans to Guantanamo Bay freely.” He must know that extradition treaties between countries are always based upon domestic law. If Kenya has signed an extradition treaty with the United States of America, and among the subjects of that treaty are the treatment of suspected terrorists, the treaty to be given effect must be domesticated, that is, a law must be passed by the Parliament of Kenya to give effect to the provisions of the treaty. If the provisions of the extradition treaty and its subsequent law are ultra vires the constitution, especially if they are in violation of Articles 29 (Freedom and security of the person), 38 (Political rights), 39 (Freedom of movement and residence), 48 (Access to justice), 49 (Rights of arrested persons), 50 (Fair hearing) and 51 (Rights of persons detained, held in custody or imprisoned), it will be struck down. Indeed, under the Proposed Constitution of Kenya, the Government of Kenya would find it very difficult to participate in a scheme to arrest, detain and transport a Kenyan citizen to Gantanamo Bay, or any other country for that matter, without first satisfying the Supreme Court of Kenya that it has the power to do so under the constitution. I believe that under the new scheme of things under the Bill of Rights, the power of the State to act as it has always acted in relation to fundamental rights and freedoms has been severely circumscribed and that the State will no longer have a free hand as it enjoyed, especially, under the Kenyatta and Moi regimes.

Articles 26 and 43 are [therefore] the gateway (sic) for gay marriages and abortion on demand.

Article 26 (4) reads: “Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other law” (emphasis mine). Article 43 (1) (a) reads: “Every person has the right … to the highest attainable standard of health, which includes the right to health care services, including reproductive health care” (emphasis mine).

Within the framework of the World Health Organisation's definition of health as a state of complete physical, mental and social well-being, and not merely the absence of disease or infirmity, reproductive health, or sexual health/hygiene, addresses the reproductive processes, functions and system at all stages of life. Reproductive health, therefore, implies that people are able to have a responsible, satisfying and safer sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so. Implicit in this are the right of men and women to be informed of and to have access to safe, effective, affordable and acceptable methods of fertility regulation of their choice; and the right of access to appropriate health care services that will enable women to go safely through pregnancy and childbirth and provide couples with the best chance of having a healthy infant.

With respect to Article 2(6), the operative words are "trained health professional" and "emergency treatment". The "opinion" in the context of the Article can only mean a "medical opinion" and such an "opinion" can only be made by a "trained health professional". "Training" to my mind implies that someone (the trained health professional) has minimum certified qualifications in a given medical field. Given that the number of women and children who have access to medical doctors is small, trained professionals in health care should include persons who have the training to determine whether there is need for emergency medical care and who have been trained to intervene in such a case.

If the Proposed Constitution is adopted, and laws are written to address the question of abortion specifically, why is it that Mr. Kipkorir thinks that Parliament will act without taking into consideration all the discussions regarding this important issue that have taken place since at least June 2008? Members of Parliament and Senators will not have such a free hand when it comes to writing legislation. Their respective roles will be circumscribed by the fact that the judiciary shall exercise oversight over any legislation that comes out of the National Assembly and shall strike them down if they happen to be ultra vires the Constitution.

Private ownerships (of land) shall be reorganised to make all title deeds leaseholds.

Article 64 reads: “Private land consists of –

“(a) registered land held by any person under any freehold tenure;

“(b) land held by any person under leasehold tenure; and

“(c) any other land declared private land under an Act of Parliament.”

The whole purpose of Chapter Five on Land and Environment is to ensure that the management of land in Kenya, whether private or public, is conducted in a transparent manner and that Kenyans are given an opportunity to acquire land for whatever reason. Mr. Kipkorir is wrong to mislead Kenyans that the land under freehold tenure shall be converted to leaseholds for this cannot be interpreted as such in Chapter Five.

In my opinion, it is the Land Question that has energised much of the opposition to the Proposed Constitution, especially the provisions related to the National Land Commission. This is the same Commission that is proposed under the recently published National Land Policy which seeks the most fundamental and radical reorganisation of land management in Kenya since Independence. Many people acquired large parcels of land during the Kenyatta and Moi regimes using unlawful means and I suspect that they are the puppeteers behind the curtains manipulating the review process with a view to ensuring that this Proposed Constitution fails at the Referendum in August. Indeed, until the Land question is laid to rest, this country shall know no peace, new Constitution or not.

If the Constitution states in one part that each community is entitled to practice their culture, how can you tell them again who can be their MP or Senator?

This is one of Mr. Kipkorir’s more frivolous statements. Nowhere in the Proposed Constitution does it state that a people will be compelled to vote for a particular candidate during parliamentary and Senatorial elections. The electoral process is based on the fact that candidates will be nominated by political parties or where person feels that the parties are not looking out for the interests of his people, he can stand as an independent. This is one of the progressive clauses that I would have expected Mr. Kipkorir to champion, seeing that the current political parties are corrupt and ineffective in representing the people. An independent candidate would be the perfect counterfoil to a political system that has constantly ignored the wishes of the people in its actions and deliberations.

How one practices ones culture, either alone or in community with others, is not a matter that would determine whether or not he could be a candidate during an election. If the peoples of Kuria, Sabaot, Mbeere, Tachoni, Teso or Tiriki feel that they have been ill-served by the political parties, nothing prevents them from electing independent candidates to represent their interests in parliament or the senate.

Wouldn’t the presidential field be tilted in favour of Raila?

This, I think, was the objective of Mr. Kipkorir’s homily. I have read and re-read the Constitution of Kenya Review Act of 2008 and the National Accord and Reconciliation Act of 2008 as well as Chapter 18 of the Proposed Constitution (Transitional and Consequential Provisions), and nowhere does the name RAILA AMOLO ODINGA appear. When the National Accord was signed between President Kibaki and Raila Odinga, the position of Prime Minster did not exist. It was created after the Accord was entrenched in the Constitution of Kenya and Raila Odinga as the leader of the largest party in Parliament was appointed the Prime Minister. However, and this is important, the post does not belong to Raila Odinga.

Section 3 of the National Accord and Reconciliation Act reads: “3. (l) There shall be a Prime Minister of the Government of Kenya and two Deputy Prime Ministers who shall be appointed by the President in accordance with this section. (Emphasis mine)

”(2) The person to be appointed as Prime Minister shall be an elected member of the National Assembly who is the parliamentary leader of –

”(a) the political party that has the largest number of members in the National Assembly; or

”(b) a coalition of political parties in the event that the leader of the political party that has the largest number of members of the National Assembly does not command the majority in the National Assembly.”

Unless Mr. Kipkorir knows the mind of Raila Odinga then he should be free to declare that Hon. Odinga shall stand for election in 2012 and hat he shall do so for the presidency. To the best of my knowledge, Hon. Odinga is yet to make such a declaration. How then is the presidential field tilted in Hon. Odinga’s favour? The transitional provisions envisage that the President shall appoint officers in consultation with the Prime Minister. President Kibaki has taken a liberal view of ‘consultation’ and there are no indications that he is about to abandon a strategy that has served him well. Indeed, he is yet to endorse a preferred candidate for the presidency, so unless Mr. Kipkorir knows something that we do not, he should feel free to share that knowledge with all Kenyans so that we are able to make up our minds whether we have a say in the whole matter.

The desire of Kenyans for a new constitutional dispensation is not a game and Mr. Kipkorir knows this. 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 abuses that have taken place as a result of the flawed Constitution that we now have. In every conceivable sense, the current Constitution is flawed and it must be replaced. 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. 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.

I sincerely hope that Kenyans have an opportunity to live under a constitutional dispensation that will protect ALL their rights against all enemies, foreign and domestic.

Proposal or rogue fantasy?

-->

-->I wish to respond to Mr. Kipkorir’s commentary (“Proposed law has good provisions, but therein lie clauses that may destroy us”, Sunday, 23^rd May, 2010) in which he makes alarmist statements that he should know are unfounded and unwarranted. I have enumerated them below.

1. Do Kenyans want to surrender their sovereignty to international treaties and covenants?

The Preamble to the Proposed Constitution states in paragraphs 3 and 7 thus: “PROUD of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation” and “EXERCISING our sovereign and inalienable right to determine the form of governance of our country and having participated fully in the making of this Constitution” (emphasis mine).

Article 2 (1), (5) and (6) read: (1) This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of Government; (5) The general rules of international law shall form part of the law of Kenya and (6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution (emphasis mine).

Article 94(1) reads: “The legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament” (emphasis mine).

Mr. Kipkorir, as an advocate of the High Court of Kenya, must know that ratification of treaties and covenants is a function of law-making, a function that is explicitly reserved for the Parliament in the Proposed Constitution. He is wrong in proposing that this lawmaking function will somehow be diluting our sovereignty by the fact that international treaties and covenants will be ratified by Parliament. He forgets to mention that even where Parliament ratifies a treaty or covenant, the power of the judiciary to determine whether the ratified treaty or covenant has contravened the provisions of the Constitution. In other words, if the treaty of convention is ultra vires the Constitution, it will be struck down and can never be enforced in Kenya.

For example, he states that “In September, we will send Kenyans to Guantanamo Bay freely.” He must know that extradition treaties between countries are always based upon domestic law. If Kenya has signed an extradition treaty with the United States of America, and among the subjects of that treaty are the treatment of suspected terrorists, the treaty to be given effect must be domesticated, that is, a law must be passed by the Parliament of Kenya to give effect to the provisions of the treaty. If the provisions of the extradition treaty and its subsequent law are ultra vires the constitution, especially if they are in violation of Articles 29 (Freedom and security of the person), 38 (Political rights), 39 (Freedom of movement and residence), 48 (Access to justice), 49 (Rights of arrested persons), 50 (Fair hearing) and 51 (Rights of persons detained, held in custody or imprisoned), it will be struck down. Indeed, under the Proposed Constitution of Kenya, the Government of Kenya would find it very difficult to participate in a scheme to arrest, detain and transport a Kenyan citizen to Gantanamo Bay, or any other country for that matter, without first satisfying the Supreme Court of Kenya that it has the power to do so under the constitution. I believe that under the new scheme of things under the Bill of Rights, the power of the State to act as it has always acted in relation to fundamental rights and freedoms has been severely circumscribed and that the State will no longer have a free hand as it enjoyed, especially, under the Kenyatta and Moi regimes.

2. Articles 26 and 43 are [therefore] the gateway (sic) for gay marriages and abortion on demand.

Article 26 (4) reads: “Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other law” (emphasis mine). Article 43 (1) (a) reads: “Every person has the right … to the highest attainable standard of health, which includes the right to health care services, including reproductive health care” (emphasis mine).

Within the framework of the World Health Organisation's definition of health as a state of complete physical, mental and social well-being, and not merely the absence of disease or infirmity, reproductive health, or sexual health/hygiene, addresses the reproductive processes, functions and system at all stages of life. Reproductive health, therefore, implies that people are able to have a responsible, satisfying and safer sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so. Implicit in this are the right of men and women to be informed of and to have access to safe, effective, affordable and acceptable methods of fertility regulation of their choice; and the right of access to appropriate health care services that will enable women to go safely through pregnancy and childbirth and provide couples with the best chance of having a healthy infant.

With respect to Article 2(6), the operative words are "trained health professional" and "emergency treatment". The "opinion" in the context of the Article can only mean a "medical opinion" and such an "opinion" can only be made by a "trained health professional". "Training" to my mind implies that someone (the trained health professional) has minimum certified qualifications in a given medical field. Given that the number of women and children who have access to medical doctors is small, trained professionals in health care should include persons who have the training to determine whether there is need for emergency medical care and who have been trained to intervene in such a case.

If the Proposed Constitution is adopted, and laws are written to address the question of abortion specifically, why is it that Mr. Kipkorir thinks that Parliament will act without taking into consideration all the discussions regarding this important issue that have taken place since at least June 2008? Members of Parliament and Senators will not have such a free hand when it comes to writing legislation. Their respective roles will be circumscribed by the fact that the judiciary shall exercise oversight over any legislation that comes out of the National Assembly and shall strike them down if they happen to be ultra vires the Constitution.

3. Private ownerships (of land) shall be reorganised to make all title deeds leaseholds.

Article 64 reads: “Private land consists of –

“(a) registered land held by any person under any freehold tenure;

“(b) land held by any person under leasehold tenure; and

“(c) any other land declared private land under an Act of Parliament.”

The whole purpose of Chapter Five on Land and Environment is to ensure that the management of land in Kenya, whether private or public, is conducted in a transparent manner and that Kenyans are given an opportunity to acquire land for whatever reason. Mr. Kipkorir is wrong to mislead Kenyans that the land under freehold tenure shall be converted to leaseholds for this cannot be interpreted as such in Chapter Five.

In my opinion, it is the Land Question that has energised much of the opposition to the Proposed Constitution, especially the provisions related to the National Land Commission. This is the same Commission that is proposed under the recently published National Land Policy which seeks the most fundamental and radical reorganisation of land management in Kenya since Independence. Many people acquired large parcels of land during the Kenyatta and Moi regimes using unlawful means and I suspect that they are the puppeteers behind the curtains manipulating the review process with a view to ensuring that this Proposed Constitution fails at the Referendum in August. Indeed, until the Land question is laid to rest, this country shall know no peace, new Constitution or not.

4. If the Constitution states in one part that each community is entitled to practice their culture, how can you tell them again who can be their MP or Senator?

This is one of Mr. Kipkorir’s more frivolous statements. Nowhere in the Proposed Constitution does it state that a people will be compelled to vote for a particular candidate during parliamentary and Senatorial elections. The electoral process is based on the fact that candidates will be nominated by political parties or where person feels that the parties are not looking out for the interests of his people, he can stand as an independent. This is one of the progressive clauses that I would have expected Mr. Kipkorir to champion, seeing that the current political parties are corrupt and ineffective in representing the people. An independent candidate would be the perfect counterfoil to a political system that has constantly ignored the wishes of the people in its actions and deliberations.

How one practices ones culture, either alone or in community with others, is not a matter that would determine whether or not he could be a candidate during an election. If the peoples of Kuria, Sabaot, Mbeere, Tachoni, Teso or Tiriki feel that they have been ill-served by the political parties, nothing prevents them from electing independent candidates to represent their interests in parliament or the senate.

5. Wouldn’t the presidential field be tilted in favour of Raila?

This, I think, was the objective of Mr. Kipkorir’s homily. I have read and re-read the Constitution of Kenya Review Act of 2008 and the National Accord and Reconciliation Act of 2008 as well as Chapter 18 of the Proposed Constitution (Transitional and Consequential Provisions), and nowhere does the name RAILA AMOLO ODINGA appear. When the National Accord was signed between President Kibaki and Raila Odinga, the position of Prime Minster did not exist. It was created after the Accord was entrenched in the Constitution of Kenya and Raila Odinga as the leader of the largest party in Parliament was appointed the Prime Minister. However, and this is important, the post does not belong to Raila Odinga.

Section 3 of the National Accord and Reconciliation Act reads: “3. (l) There shall be a Prime Minister of the Government of Kenya and two Deputy Prime Ministers who shall be appointed by the President in accordance with this section. (Emphasis mine)

”(2) The person to be appointed as Prime Minister shall be an elected member of the National Assembly who is the parliamentary leader of –
”(a) the political party that has the largest number of members in the National Assembly; or

”(b) a coalition of political parties in the event that the leader of the political party that has the largest number of members of the National Assembly does not command the majority in the National Assembly.”

Unless Mr. Kipkorir knows the mind of Raila Odinga then he should be free to declare that Hon. Odinga shall stand for election in 2012 and hat he shall do so for the presidency. To the best of my knowledge, Hon. Odinga is yet to make such a declaration. How then is the presidential field tilted in Hon. Odinga’s favour? The transitional provisions envisage that the President shall appoint officers in consultation with the Prime Minister. President Kibaki has taken a liberal view of ‘consultation’ and there are no indications that he is about to abandon a strategy that has served him well. Indeed, he is yet to endorse a preferred candidate for the presidency, so unless Mr. Kipkorir knows something that we do not, he should feel free to share that knowledge with all Kenyans so that we are able to make up our minds whether we have a say in the whole matter.

The desire of Kenyans for a new constitutional dispensation is not a game and Mr. Kipkorir knows this. 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 abuses that have taken place as a result of the flawed Constitution that we now have. In every conceivable sense, the current Constitution is flawed and it must be replaced. 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. 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.

I sincerely hope that Kenyans have an opportunity to live under a constitutional dispensation that will protect ALL their rights against all enemies, foreign and domestic.

Sincerely,

SAMSON DAVIES MAUNDU, ADVOCATE

THE 95% PROBLEM

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.

Play Fair or Reap the Whirlwind

Ms. Martha Karua is right - the government cannot take the YES campaign as a national project. It is not. The Prime Minister and the President and indeed, their Cabinet, are free to campaign for the Proposed Constitution, but they are not a recognised organ under the Constitution of Kenya Review Act of 2008. The Committee of Experts is the only body mandated by law to educate Kenyans as to the contents of the Proposed Constitution, so their civic education exercise must be funded out of the Consolidated Fund. The YES and NO campaigns are partisan affairs and do not deserve a penny from the Consolidated Fund.

Tax-payers' monies should only be dedicated towards projects that will benefit the people of Kenya collectively. The fact that here 2 camps in this campaign means that one side is being disenfranchised in the debate when the Government purports to allocate money to defeat their view. If we are serious about reforming the way politics is practiced in this country, the fact that the Proposed Constitution was part of Agenda 4 of the National Accord signed between the President and the Prime Minister cannot be used to walk all over all canons of fair play.

If the Government is going to allocate who knows how many millions to seeing the Proposed Constitution adopted, it should allocate a matching amount to the NO campaign, irrespective of the unpalatable view being propagated by its exponents. That is the just and fair thing to do.

Justice and doing what's right

JUSTICE n 1. the quality or fact of being just. 2. Ethics. the principle of fairness of like cases should be treated alike. 3. the administration of law according to proscribed and accepted principles. 4. conformity to the law. (Collins Dictionary & Thesaurus, Third Ed., 2004)

Justice n. 1. The fair and proper administration of laws. (Black's Law Dictionary, Eighth ed. 2004)

I like the law. It gives me hope that peoples can govern themselves without to resorting to violence to resolve disputes. I also despair. Kenya has proven time and again that intolerance and rigidity are its defining qualities.

Many canards have been spread about what this country is and what it aspires to be. The history of this nation is a history of betrayals right from the gun-toting bible-wielding settlers of the 1890s to the bloodthirsty freedom fighters of the 1950s to the assassination-prone politicians of the 1960s and '70s to the corrupt murderers of the 1980s and '90s. What has changed has been the increasing desperation and disillusionment of the people of Kenya, such disillusion and desperation being used to scare them into making fatal mistakes every now and then.

The greatest betrayers of Kenyan society in the recent past have been the various faces of the Church leadership in Kenya. In 2005 and 2007, instead of leading the flock, church leaders, especially of the pentecostal and evangelical brands, lied and misled Kenyans. The results, not surprisingly, were chaos and death. Other than the 1998 Bomb Blast and the violence related to the deportation of Abdullah el-Faisal, I think Christians have been responsible for more violence than Muslims. Even the Shifta Wars of the 1960s and '70s, were perpetrated against the Somali Kenyan Muslims by state, which culminated in the Wagalla massacre in 1984.

Now we are being scared with tales of 'abortion on demand' and 'Kadhis' Courts. I wish I could say that I didn't care and that people were free to spread fear and discontent and misogyny and and xenophobia because it is their right to speak their mind. But I cannot.

I have travelled widely in this country and I know for a fact that the level of poverty in this country is extreme. The number of Kenyans who have access to adequate and affordable primary health care is small and dwindling. The number of Kenyan women who have access to contraception, prenatal and maternity health care is small, and dwindling. The number of women surviving childbirth is increasingly under threat. The number of women who fall pregnant as a result of sexual violence (witness the chaos of 2007/08), incest or failing contraception is on the rise. But the saddest are those who were betrayed by their friends and families or had their childhoods torn asunder by their guardians.

It is claimed by religious fundamentalists that ALL pregnancies should be carried to term, that life begins at conception and ends at natural birth. I have no quarrel with this position so long as it is a religious position. But if my daughter was the victim of rape, right after exacting my personal vengeance on her attacker, I would support her fully if she chose to terminate the pregnancy. My church would prefer that she suffers the emotional and physical scars for all eternity! In MBO v Republic [2010] eKLR, the Court of Appeal has just convicted a 63-year old man to 10 years with hard labour for sexually molesting children aged 6, 9, and 11 years. The church has failed to stem the tide of this rot and now it is threatening us with eternal damnation if women are given the right to choose, which they are not in this draft.

The provisions of Article 26 are the most draconian I have ever seen. The draft has been used as a Roman broad sword to cut a swath in the Kenyan body politic. One day the church leaders will realise that their job was to interpret the Word of God, not to speak for Him. The stand they take today will either make them or break them. I am afraid, they will fail and even if they succeed, they will still fail because provisions on abortion make lesser demands under the Penal Code than in the draft and the Kadhis still exist in the constitution. What we will be left with is an overmighty presidency whose powers have been used more for ill than for good.

The TJRC Must Go!

Ambassador Bethwel Kiplagat is a man facing one of his toughest challenges today. He should not have agreed to become the chairman of the Truth, Justice and Reconciliation Commission (TJRC) knowing full well that the role he played in the Nyayo Era, no matter how benign, would form the basis for the objections raised againts his chairmanship. Even if he did not know this, the situation today has become untenable for him and to remain at the helm of the TJRC is the height of obstinate stupidity.

The Minister for justice is right that Ambassador Kiplagat's conduct so far does not raise questions that would lead to the formation of a conduct to investigate him. But this is not merely a legal matter anymore; it is a moral one. The chairman's claim that he is an honourable man would necessitate his resignation whether he was guilty or not and give the country an opportunity to work out the kinks from its past.

So far, Mr. Kiplagat has been linked to the Wagala massacre, the Ouko assassination and illegal acquisition of property in Nairobi and Eldoret. All these will be subjects of the TJRC whenever it finally gets off the ground and begin's to discharge its mandate. Mr. Kiplagat, therefore, would be called to testify or defend himself. This is quite clearly a conflict of interest on his part. Indeed, he swore an affidavit before being appointed the chairman that there was nothing in his past that would warrant enquiry by the same commission. He lied and it is time he recused himself from any further involvement with the Commission until such a day that he is called to speak before it.

Betty Murungi is a different kettle of fish. Again, Hon. Kilonzo was right to question her motives for resigning as the vice-chairman, a posistion I might add that does not exist in the parent Act, while still choosing to remain a commissioner. The grounds for her resignation included an assertion that because the Chairman would eventually become the subject of enquiry, it would be untenable to work with him as vice-chairman. Only in Kenya can one appear to gain the moral high ground without actually gaining it. Ms. Murungi and her fellow Commissioners should all have resigned if they felt that retaining Mr. kiplagat as chairman would compromise the work of the Commission. It is not enough to make statements that amount, asically, to nothig without acting on the strength of your convictions.

I can only posit that the reason why none of them has resigned is becuse of the attractive terms that they enjoy. As has been the trend since the Goldenberg Commission of Inquiry, fat paychecks tend to blind people to the wise decisions that must be taken to protect integrity. These Commissioners are no different from the allegedly perfidious politicians we have running this country. The recent attempt to carry out a palace coup against their chairman came in the same week that the City Council of Nairobi decided to spend a further KES 250 million on another cemetary. The irony should not be lost on you: taxpayers' monies are mere tokens to be shared out among the elite. Perhaps it is time we elected to do away with the TJRC in the interests of the nation. It can be constituted later when we have gone through the Referendum and the process of the implementation of the new Constitution is well underway. Otherwise, we will kep burning millions of shillings with nothing to show for it.

Who cares if the Chief Kadhi is entrenched in the Constitution?

"The provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhi’s courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance."

-Art. 29(4), Revised Harmonised Constitution of Kenya (8th January, 2010)

I have no problem in this provision or the the ones that regulate Kadhis' Courts (202 (1)(b) and 203). The basis for my position is not that they have been entrenched in the current constitution for nigh on 45 years, but the fact that Muslims in Kenya are an identifiable minority in need of protection from the Christian majority, who apparently define themselves as such.

The history of persecution of religious minorities is long and bloody. many Kenyans may not appreciate this, but Bosniaks (Bosnian Muslims) were massacred by Orthodox Christian Serbs simply for being Muslims. Adolf Hitler sent 6 million Jews to their deaths because they WERE Jews. The treatment by the State of Israel of its Palestinian minority will fuel the Palestinian war for decades to come unless the Jewish state re-thinks its position. The mantra "Israel has nuclear bombs but we have human bombs" should be an indication of the level of resistance the Jewish State faces.

We find ourselves at the cusp of a new beginning but we are at risk of losing the chance. Christian hard-liners who have forgotten that the basis of their faith are the teachings of Jesus of Nazareth, are attempting to change the nature of our Christianity. They are attempting to persuade us that the battle for a new constitution is also a battle between the Islamicisation of Kenya or its secularisation. I respectfully beg to differ.

The new constitution is about fair and unfair; right and wrong; protection of human rights and abuse of human rights; good governance and bad governance; equity and inequity; justice and injustice. Last time I checked, victims of human rights abuses included Muslims and non-Muslims alike. Corruption in Kenya affected all Kenyans regardless of religious affiliation. To portray this draft as the end-result of a conspiracy to impose Shariah on an unsuspecting country is to mislead with extreme prejudice.

I will vote yes because I wish justice to reign over all things. One of my favourite lines in music goes something like: "Let righteousness cover the earth like the waters cover the sea." While the draft is not a panacea for what ails this benighted nation, but it is a credible first step to certain goals: justice, good governance and an end to impunity. I despair that there are those who wish to perpetuate a system that would not only guarantee that their pet peeves are not eradicated, but that would entrench even more firmly an unjust, unfair and, I must add, an un-Christian system!

Somalis and the Constitution

The Independence Constitution, during the Lancaster house Conferences, was stuck on the question of citizenship. Therefore, because it was a negotiated document, we ended up with the provisions that we have today. Citizenship can be acquired in specific ways, including by birth, registration and naturalisation. In the 1960s and through the 1970s, Jomo Kenyatta launched what came to be known as the Shifta Wars with the aim of preventing the secession of the erstwhile Northern Frontier to the bastard state of Somalia. As a result, a significant population of Kenyans are of Somali origin; the Somali is recognised as a Kenyan ethnic group by the government, indeed, by the world.

I do not have any recollection of President Kenyatta having ever visited the Northern Frontier even once in his 15 years as president, nor president Moi in his 24. The level of official government neglect and marginalisation is staggering. Today, many of the families in Northern Kenya have struggled to ensure that their sons and daughters (but mainly the sons) have gone to school and graduated from universities. Indeed, Hon. Mohammed Abdikadir, the chairman of the Parliamentary Select Committee on the Review of the Constitution is a Harvard-educated lawyer while the Chairman of the Interim Independent Electoral Commission is equally well-trained and qualified to discharge his mandate. These are success stories despite the neglect and abandonment of their own government and there are many similar success stories that can be depicted.

It is only natural that a community that still bears the scars of the Shifta Wars and the Wagalla Massacre to be clannish and band together to protect itself from the vagaries of the political environment. After all, Kenyans are notorious for fanning ethnic troubles for political ends. Consider the effects of the 2007 General Elections. Therefore, the existence of Somali ghettos such as Eastleigh is not unusual or 'a danger to the fabric of the nation' as alleged, but a sign that the Balkanisation of Kenya has had unintended consequences. Would the author not agree that it is the poor who are most likely to live in ethnically-divided ghettos? Mathare and Kibera, two of our most-famous slums in Nairobi, have since 2008 been clearly divided along ethnic lines. So why shouldn't the Somali community in Kenya choose to sequester itself away from a government that has abandoned them and waged war against them at various times in the past?

Comparisons with other countries' experiences with their Muslim populations also vary and depend to a large extent on the histories and economies of those countries, among other considerations. The failed state that is Somali has nothing to do with the ethnic identity of its populace but with the very real fact that it was a dictatorship that was overthrown and the result was a collapse of the very infrastructure of government with everyone attempting to impose his own dictatorship on a proud people. The current assail on the TFG by the Al-Shabaab is just the latest chapter in a long and bloody history. Al Qaeda and its supporters would not have a toe-hold in Somalia if there had been a stable government in place. The instability, which was exacerbated by the USA and her allies, created the perfected conditions for the growth of sectarian and extremist groups in Somalia.

This brings be to an important conclusion: If Kenya wishes to find a solution to its 'Somali' problem it must make every effort to ensure that a stable government capable of policing it borders and maintaining peace and security is installed in Mogadishu. Somalia is our 'Strategic Hinterland' and we must ensure that our backyard is peaceful. We have been lulled to believing that the purpose of government is just the protection of human rights and 'good governance.' The true purpose of government, which the USA discovered very early on in its history, is commerce and international trade. Kenya must create the conditions that will guarantee it an important role in regional commerce and ensure its dominance in the economic activities of ALL countries in the Greater East Africa Region, including the Horn of Africa. This cannot happen while we turn a blind eye to the travails unfolding in Somalia and to a large extent in Southern Sudan. Greater wealth for the nation can be made only in a stable area and East Africa is NOT stable.

The large scale acquisition of property in Nairobi and other parts of the country by Somalis and other wealthy Muslims should be taken as a sign that they have lost faith in the Government of Kenya to intervene effectively in the problems in the region. Any attempt by the government to forcefully intervene to deny them rights that they enjoy as Kenyans will be met with resistance. How the government acts will determine whether this resistance will be civil or violent.

Yes:1, No: 0

Did anybody see the ass-whupping Ruto received at the hand of one Martha Karua on Newsnight tonight? Man, the guy got beat. It was almost too painful to watch. Shoulders were slumped, he was hunched over his seat, legs crossed at the ankles like a school-boy in the Principal's office and his eyes couldn't focus. With his hands clutching and un-clutching in nervously in his laps, he was a shell of a broken man.

He had taken his 'No' campaign to the KTN studios unprepared and arrogant. Hon. Karua took a scalpel to his arguments and pointed out some home-truths he would have preferred remained buried for life. This should be a lesson to the nay-sayers out there: you take on the 'Yes' campaign at your own peril; if you must, you must prepare and prepare well. I just wish I had remembered to record the encounter. Ruto's battered ego on TV is worth the bank!

In Favour of the Kadhis' Court

Christian fundamentalists and hardliners are right in one respect: no matter how we look at them, Kadhis' Courts are based on Islamic law and, therefore, ARE religious institutions. Where they are totally wrong is in their demand that they be removed from the Revised Harmonised Draft as they will 'Islamicise' the nation or some such stupid reason. On the other hand, family law under Islam is essentially civil in nature and therefore, even though family law is addressed in the Holy Quran, this interpretation is essentially civil in nature. The irony is not lost on me: a religious text making secular provisions. Therefore, on that basis, Kadhis' Courts are not religious institutions and since we shall have the Judiciary given constitutional protection, this protection should be extended to the Kadhis' Courts too. The length of their stay under the current constitution should be persuasive but not conclusive. Ultimately, it is irrelevant how long the Kadhis' have been retained under our current constitutional framework. What is relevant is that they are deserving of constitutional protection, just like any other court within the judiciary. This is not to say that specialised tribunals should also receive such protection, but that because the Muslims in Kenya are an identifiable minority in a Christian majority nation they must be protected from the tyranny of the majority. The objections raised by the various leaderships of the various Christian church denominations in the past few months should be sufficient proof of such tyranny.

Marriage, divorce and succession should not be contentious in any way. That they have been made to seem so indicates the level of ignorance about the role that the Kadhis play in today's judicial framework. Christians have Christianity as the basis of the African Christian Marriage and Divorce Act as well as the Marriage Act. Indeed, even the preamble to the Revised Harmonised Draft declaims the special role of God. This does not in any way make the draft any less secular than it is.

The Minister for Justice has his work cut for him trying to convince the Christian objectionists to the relevance of the Kadhis in today's legal framework. Their's is not an objective, logical or rational objection but one that has been fuelled by ignorance and misinformation about the need to offer some recognition that Muslims in Kenya are a minority deserving of at least some semblance of constitutional recognition and protection. The argument that Kadhis' Courts were inserted into the Constitution by way of fraud or blackmail does not hold water. Many of the amendments to the constitution made by the Kenyatta and Moi governments since 1963 were based on the need to entrench executive power in the hands of the president to the detriment of the needs of the people of Kenya. The draft attempts to reduce the power enjoyed by the president and to ensure that we shall no longer be at the mercy of the executive. Indeed, even the chapters on representation and devolution go a long way in reducing the power the executive has to make decisions or take actions in the name of the people without ensuing that such decisions or actions are indeed in the interests of the people.

A new constitution has been a long time coming. It has become a mantra that we require a new constitution without looking at the merits or otherwise of such a need. It is time that we reminded ourselves of the perfidy that has been perpetrated against us as a nation under the current constitutional dispensation and admit that though not all our desires have been addressed in the draft, it goes a long way in offering a new contract between the governed and the governors. We cannot go into the next general elections knowing that the head of state and head of government will be essentially free to do as they please without some sort of supervision or overriding authority in certain circumstances. The draft offers us a chance to reshape the role that political power plays in our lives.

Christian leaders cannot make the case the Christians in Kenya are a minority. Muslim leaders can make that case for all Muslims in Kenya. A nation is only as strong as the protections it offers its minorities. The Christian majority should take this to heart for it is only when a minority is subjected to tyranny that it truly rebels and takes up arms against the majority.

Land and the Referendum

It is becoming increasingly apparent that the opposition to the Revised Harmonised Draft Constitution has nothing to do with the clauses on abortion or Kadhis' Courts but everything to do with the question of land and equitable access to land. The same forces that have been arrayed against the implementation of the 2009 National Land Policy are the same ones arrayed against the draft.

We seem to have forgotten an important component of our nation's history. When the Mau Mau was formed, it gave itself the name "Land and Freedom Army". Majority of the original members of the Mau Mau were the dispossessed of Central Kenya and the White Highlands. Our main beef with the colonial power was with land policies and our resistance to these policies was violent and political at the same time. President Jomo Kenyatta betrayed the men and women who fought and died over the land question and this is the legacy that has haunted this benighted land ever since.

Over the decades, many attempts have been half-heartedly made to redress the iniquitous distribution of and in Kenya. These culminated in the Ndung'u Land Commission and the National Land Policy. Today, we have the Revised Harmonised Draft. What we decide over the next few months will determine whether or not this country can ever escape its past and forge a bright future for its young and their children.

It is instructive that the standard-bearers of the 'No' campaign are the same people who have acquired thousands upon thousands of hectares of land unlawfully. The opposed the government's plans to evict illegal settlers from the Mau Forest and they will oppose this draft because in the long run, one of its provisions will lead to the repossession of land that had been unlawfully obtained. President Moi and William Ruto may differ on political matters but on the Land Question, they are brothers-in-arms. They are among the thousands of KANU operatives who acquired land illegally from the government using their positions of power to do so at the expense of national priorities and ground realities. They are not alone.

There are literally thousands of foreigners, civil servants, serving and retired disciplined forces operators and ex-colonial settlers who control the bulk of the valuable commercial and agricultural land in Kenya. They will not simply sit by and wait for the National Assembly to act with regards to the millions of acres of and in their possession. They will take steps to forestall any process that will ultimately deprive them of the sources of their great wealth.

When Martha Karua and her colleagues drafted the Constitution of Kenya (Review) Act in 2008, they could not have foreseen that it would be the seed for the dispossession of the above-mentioned worthies. For this, Kenya will owe her a debt of gratitude that only the passing of time will realise. What we must do as a nation is to safeguard the gains that have been made. Even if we do not adopt this draft, we must ensure that the National Land Policy is implemented in full. If it is, one of the main causes of perennial conflict will have been addressed once and for all. Without sorting out the Land Question honestly, we may never get another opportunity to right the ship of state. Governance issues and corruption will continue to be given short shrift.

Mr. Ruto and his fellow 'No' campaigners must be told that in no uncertain terms will they be permitted to derail what is a far-reaching exercise in ensuring equity and equality in Kenya. Someone must take the fight to them and remind them that KANU is no longer the party of choice, that we are tred of being manipulated for the benefit of others and that we shall take all necessary steps to ensure that we emerge a stronger and more vibrant nations. We are the only ones who can take this battle to their door-step. This is the second phase of the Second Liberation and we must prevail. Let this be a warning that shall be heard abroad in the land: you derail this constitution, we are still coming for our land. Come what may!

I want a new Constitution. Do you?

"The role of a constitution is to provide scope for good government, while at the same time placing limitations on the powers of the governors. " - Dr. Mark Cooray

This is the situation that we find ourselves today, that is, in the process of giving ourselves a new constitution. We wish to give to ourselves a document that will organise our government but at the same time place checks on how the power of that government is exercised. Our political class, before and after Independence, has never and will never accept checks on how their power to govern is exercised.

Today is the last day of debate before the Revised Harmonised Draft Constitution is sent back to the Committee of Experts for final drafting and then its onwards transmission to the Referendum. It is emerging that the political class will not get the amendments many of them sought to enhance the power of the governmet at the expense of credible checks on the exercise of that power. The leadership of the Honoroubla Speaker of the National Assembly has been ably demonstrated, especially when he ruled that to amend the revised draft would require a two-thirds majority. Thus began another assault on the revised draft by the agents of status quo. It is to the credit or discredit of Members of Parliament that their recently habitual divisiveness has prevented them from passing any amendments to the revised draft.

The journey to new political dispensation began with the first shots fired by Kenneth Matiba and Jaramogi Oginga Odinga in 1990 when they led the charge against section 2A of the Constitution of Kenya, leading to its repeal in 1991 and multi-party general elections in 1992. The way President Moi played off the key leaders of the oppoosition against each other in the intervening years before he peacefully handed over power to his successor, President Kibaki, was enough to slow down the road to a new constiitution. We overcame these hurdles and now are closer than we have ever been to a new constitution.

The IIEC has already began the process of creating a new voters' register. It would be remiss for any eligible Kenyan to refuse or fail to register, if only to vote in the referendum. This is not a general election; it is much more important than that. I have previously railed against the undemocratic structure of our political parties and I will not debase the word 'democracy' by participating in a general election in any way. However, the referendum on a new constitution is a different kettle of fish altogether.

The Constitution describes our relationship with our government and lays down in black and white our rights and obligations under the constitution. How can we state that we have a right NOT to participate in general elections if we did not participate in the process of creating and articulating that right? It is imperative of all right-thinking and engaged Kenyans to take part in the process: reading, revising, amending, and voting for (or against) the draft at the referendum. We cannot go through life bitching and moaning that this country is held hostage by politicians if when we had the opportunityt to determine what those politicians could do, we did not did not seize the day and take action. Registering as voters and voting in the referendum is our line in the sand and taking our country back from thos perfidious thugs in suits.

When history judges this nation, it should be that we took a stand and made our marks on the draft. We took charge and approved/disapproved a document that we had read and understood. We had thrown off the yoke of political apathy and instead held our heads high as we showed the world that our political process has matured. Otherwise, we will bequeath our children with a political process that will leave them at the mercy of what is proving to be an increasingly authoritarian and perfidious political class.

Towards Anarchy?

The Constitutional Review Process is entering its final and, potentially, most contentious phase. Prime Minister Odinga and President Kibaki have staked out their positions. William Ruto, Uhuru Kenyatta and their fellow-travellers are staking their claims to the future. No one seems to be concerned that perhaps, just perhaps, the Draft Constitution is not the New Canaan we were promised some 20 odd years ago. Much blood has flowed down the Rubicon since the halcyon days of Saba Saba. Kenneth Stanley Njindo Matiba is a pale shadow of his former, dynamic self. Jaramogi Oginga Odinga is no more. Martin Shikuku is a political punch-line. These heroes of the Second Liberation have been replaced by paper tigers without a shred of perspective. Kiraitu Murungi, Koigi Wamwere, Kabando wa Kabando, and their former comrades-in-arms have not delivered the change that Kenya so desperately needed.

However, there are some dim slivers of light in the abyss. It is becoming clearer that not all the political calculations that have been made in the past six months have had the political impacts their authors anticipated. The original drafters of the Constitution of Kenya Review Act could not have predicted the huge influence they would wield by denying the known stumbling blocks a role in the drafting of a new constitution. By insulating the process as far as they could from political and civil-society interference, they have given us the best chance at a new constitution. And make no mistake - this is our last chance.

The debate revolving around the question of devolution and abortion is mere smoke-and-mirrors. The true struggle is on the transitional process, especially the powers of the Prime Minister. There is a section of the political class that fears Prime Minister Odinga may be a stumbling block to their political ambitions if the transitional clauses are retained in their current form. It is increasingly clear that the future of this country lies in how PNU politicians, especially those from Central Kenya, and Vice-President Kalonzo Musyoka deal with the juggernaut that is the PM. He has of late wrong-footed them at every stage of the review process. They need a plan to contain him before, during and after the referendum and more crucially, during the 2012 General Elections. His transitional powers are just one facet of the conflict.

Mr. Odinga has proven adept at crafting alliances in unlikely places. While Kenyan politicians are notoriously ungrateful and fickle, no one should underestimate the political favours that Mr. Odinga is owed by many Members of Parliament. To do so would be the greatest of political suicides. While Mr. Kibaki is no longer a candidate in 2012, his influence on the process should not be underestimated either. It is what one or the other does in the period between that will determine the success or failure of the review process. Mr. Kibaki's perceived weaknesses and Mr. Odinga's alleged stubbornness led to the bloodshed of December 2007 to February 2008. Their alleged differences today are still a potent ingredient in the Kenyan political scene. Anyone who doubts this should witness the impacts on their allies and foes alike when they intervene in the political scene. This will be in stark display next week when debate in the National Assembly will determine whether or not amendments will be made to the Harmonised Draft Constitution.

These events will shape the referendum and the General Elections. They will re-create alliances and political parties. They will reveal once more that when it comes to political machinations, our MPs, their backers and their constituents play dirty just like any others worldwide.

Why Kenya Should Become a Vassal of the USA

'Sovereignty' is defined by the Collins English Dictionary & Thesaurus (3rd Ed., 2004) as "supreme and unrestricted power, as of a state; an independent state." The Black's Law Dictionary (8th Ed., 2004) defines it as "a person, body, or state vested with independent and supreme authority." The key words in these definitions are "supreme", "independent" and "unrestricted". Can Kenya claim to be a "sovereign state"? The Constitution of Kenya declares in section 1 that "Kenya is a sovereign Republic". Black's Law Dictionary defines this as "a system of government in which the people hold sovereign power and elect representatives who exercise that power".

The Constitution of India, on the other hand, in its preamble declares India to be a "sovereign, socialist, secular, democratic Republic." This matters a lot in how the elected representatives exercise the sovereign power of the people. In India, the elected representatives have resisted strongly the urge to mortgage their country to foreign interests, even when it would have been the easier thing to do to address pressing social and economic problems. Indeed in 1991 when India's foreign exchange reserves were in a precarious state, India did not go to the World Bank or IMF with hat in hand; instead, it took steps to liberalise its economy and thus become competitive in the global market. Today, unsurprisingly, the Tata group of companies is a multi-national conglomerate that owns such prestigious Western brands as Corus Steel, Tetley Tea, Jaguar Motor Co., and Land Rover.

While the People's Republic of China can hardly be described as a democracy, the Communist Party of China has also maintained an iron economic grip on the sovereignty of the Chinese State; indeed, the People's Revolutionary Army, at over 1.5 million strong, is also the largest economic investor in the country, separate from the Communist Party itself. All this is intended to ensure that China remains independent from the strong global politico-economic forces championed by the West. As a result, China has pursued a policy that has seen it rise steadily towards becoming a major global power whose opinion must be considered during periods of global instability, such as the economic recession that began in late 2007.

Which leads me now to conclude that Kenya can hardly claim "sovereignty". When the Minister for Foreign Affairs thumps his chest and dares America to do its worst, threatening similar retaliation, Hon. Wetangula willfully turns a blind eye to the politico-economic realities of the day. The past 18 months have demonstrated that we are "sovereign" only in name; in fact, however, we are beholden to the largesse of foreign powers, some Western, some not. When it was predicted that at least 10 million Kenyans were in danger of starvation, the Government of President Kibaki and later the Coalition Government of President Kibaki and Prime Minister Odinga went cap-in-hand to the West for food aid. When the 2007 General Elections led to widespread violence, displacement and anarchy, foreign powers intervened and coerced the 'principals' to cohabit unhappily in a coalition. A lot of the 'developmental aid' that Kenya receives goes towards 'budgetary support' and contrary to what our Finance Ministers claim, Kenya has yet to support its development agenda without assistance from foreign powers. So, how can we claim sovereignty as a nation when our elected representatives have mortgaged our country to foreigners?

Samuel Johnson said that 'patriotism is the last refuge of the scoundrel' and in Kenya this no longer moot. Every time our elected officials wish to distract us from pressing domestic matters of national importance, they use patriotism as a weapon to attack those foreign powers that have an opinion on "our internal affairs", forgetting that, especially, the West has supported this country financially for decades and expect a steady rate of return for their investment. By now we should all have realised that there are no rfree lunches in real life; we all pay a price, one way or the other.

Which leads me to ask, is it of any benefit to anyone that we remain a 'sovereign Republic'? The United Kingdom still retains many "dependent territories". So does the United States of America. Given our anti-pathy to being the Queen's subjects by the fact that her government screwed up so royally when Kenya was under her thumb, the USA seems a better bet as a colonial master. I propose that Kenya votes to become a proper vassal state of the USA. This will eliminate many of the problems we currently face: there would be no necessity for a President or Prime Minister; indeed, there would be no need for a 43-strong cabinet of ministers; the civil service could be refashioned along American lines; we would no longer speak of economic aid as much as transfer of resources. While America may baulk at adopting a wayward country like Kenya, in the long run it is our best interests to be rule by a foreign power; they can't screw up half as bad as our many thousands of politicians have screwed up since 1963. More importantly, we would never be divided again by General Elections and we would all concentrate on getting the much coveted Green Card, the epitome of achievement in Kenyans' eyes.

Is the Rift Valley worth all the trouble?

The Rift Valley, once more, is being billed as the future turf of the electoral contest come 2012. Yesterday's creation of a Kalenjin Council of Elders and today's revelations of a Cabinet Minister directly involved in inciting violence against the non-Kalenjin point to a fundamental misunderstanding of the concept of liberal multi-party politics. The Council ignores or attempts to ignore the fact that the Rift Valley is not the exclusive home of the Kalenjin and its members' claims that it is not a political outfit should be taken with the same quantity of salt one would take against the claims that certain Rift Valley MPs were not involved in the violence of 2007/08.

However, we shouldn't ignore the fact that the 10 sub-tribes of the Kalenjin are the largest ethnic group in the Valley. The Kikuyu, the Luhya and the Kambas are some of the other ethnic groups that can lay claim to parts of the Valley. But it is the Maasai who occupy second place in terms of size and political influence. The fact is, the Kalenjins call the Valley home but this does not mean that this is their traditional home, not in any way, shape or form. The Kenya constitution, flawed as it is, makes provisions for the protection of the rights of Kenyans to own property anywhere in the country.

The members of ethnic communities who took advantage of the semi-literacy of the 'true' owners of the Valley and acquired large tracts of land are not to blame for the failures of the so-called kalenjin leadership. If this new outfit wishes to address the leadership challenges of the Kalenjin, it must honestly tell its people that the reason why it is so backward in academic and economic terms and in other measures of socio-economic advancement. It is a fact that while the 24 years of president Moi's reign brought many opportunities to the people of the Rift Valley, one cannot deny that he ignore large swathes of the place. There is no excuse for the backwardness of the Ogiek or the Pokot and Turkana. President Moi, while showering largesse on a few of his fellow Kalenjin did not do much for the community as a whole, hence their feelings of persecution at the hands of economically and academically superior members of other communities.

It is now apparent that many of the Kalenjin politicians in Parliament, while denying that they are arming militias in the Rift Valley, will not do anything to reduce the level of tension. Many, even those in high government office, are convinced that their community is under siege. It is not our fault that the violence that took place after the 2007 General Elections took place largely in the Rift Valley; it is Rift Valley, specifically, Kalenjin MPs who perpetrated and perpetuated the violence and pretended to jpoin hands at the signing of the National Accord in 2008. What is required is an honest assessment of the MPs and other leaders of the Kalenjin community. Hon. Ruto, Hon. Bett, Hon. Sambili, Hon. Prof. Kamar, Hon. Kilimo, Hon. Isaac Ruto, Hon. Sirma, Hon. Cheptumo, Hon. Kutuny, and all the rest of them have singularly failed to articulate clearly a vision for their constituents and they will lead their people to the next general elections with percieved grievances against the rest of the country. I am not worried that militias are being armed in the Rift Valley; I am worried that if we balkanise this nation any further, there won't be a nation worth saving in the aftermath of the 2012 general elections.

Teen Sexuality is a Fact

I was shocked - shocked - to learn that teenagers and pre-teenagers are having massive amounts of sex. SEX! How could this come to pass? In Kenya of all places too. We are a Christian nation (so do all those churches tell us) and we do not have sex save for procreation. This report based on armchair research is just plain wrong. There's no way my standard eight neighbour in the micro-skirt and tumbo-cut is giving it to my other form one neighbour with the bad mohawk and sagging jeans and spotless white timbalands. No fucking way!

At least that is what I wish to stay but cannot because the truth is something else altogether. With every advancement in this country, be it economic, academic, telecommunication or social, the age of sexual maturity keeps getting lower and lower. Maturity as in recognition of themselves as sexual beings but not mental maturity to recognise the implications of sexuality and sexual activity. There is plenty of blame to lay around: parents who socialise their children using the DSTv and the internet; schools that are overcrowded and teachers who are overworked and underpaid; corrupt local authorities that have sold every bit of open land to the nearest Mr. Moneybags Developer; and churches that have proliferated at the same rate their proprietors are caught with their pants down that they are incapable of offering a coherent moral compass to their congregants. In the middle of all this is caught a givernment that has absolutely no idea what its priorities are and how to achieve tangible social and economic advancements without rending the fabric of society.

As a result, childhood sexuality is being ignored and the result is the rise in childhood pregnancy and abortion on an unprecedented scale. If we do not admit to ourselves that there is a problem and that we all must take responsibility, how will we find the courage or wisdom to offer more than platitudes to these children who are endangering their lives. HIV/AIDS is not the only risk facing them. Sexual exploitation can be far much worse. If you do not believe this, visit Phuket in Thailand and witness the dull stares of young boys and girls raped on a regular basis by clientys much older than them. Or take a walk along the beaches of Malindi and Mombasa!

Do they still want a dictatorship?

There is a new smell in the air: religious hypocrisy. The venom pouring forth from a section of my Christian brethren regarding the Kadhis' Courts is not only frightening, it is also illuminating. It is now quite apparent that Bishop Dr. Margaret Wanjiru, the MP for Starehe, Assistant Minister for Housing and the propietor of the Jesus is Alive Ministry has a very large bone to pick with the Muslims in Kenya. It is not just the question of 'their' courts; she was also at the forefront of preventing the Jamia Mosque from exercising another of their constitutional rights with regards to a piece of property they had paid millions of shillings for in Nairobi.

Christianity preaches tolerance; Jesus exhorted us to turn the other cheek if we were persecuted. The good Bishop and her fellow-travelers have a different interpretation of Christian brotherhood. In their discourse, the world owes us a lot. Christianity is under siege - from pornographers, Muslims, Jews, Hindus, hip hop artistes, reggae musicians, Hollywood, etc. The Church is facing a declining congregation and declining collections. In Kenya, to 'grow' your church, you must give it a national profile. Dr. Wnajiru has found the perfect issue to help JIAM to gro: antipathy to the Islamic way of life.

Kenya has never had a distinct line between church and state. After all, this is not the United States of America. But there has always been the presumption that all views, religious and otherwise, would be considered when matters of national importance are discussed. Dr. Wanjiru and her supporters are of the opinion that contrarian opinions are dangerous and 'demonic' and must be challenged at every opportunity, even if they cost Kenya opportunities for advancement. As a nation, we have waited for a new constitution now going on 19 years. The Christian opposition to a draft that has yet to be published over a matter that the rest of the country saw as settled for over fifty years will cost us a new constitution, one that will ensure that we remain saddled with a constiitution that we have already decried as overbearing and prone to massive abuse. Perhaps this is the game plan after all. Ensure that we go into the next general elections to elect a national assembly and president who would enjoy the enormous corrupting power conferred by this constitution. If this is the goal of the sudden discovery of religious parity in our Christian brethren, they will saddle this country with one more of a rather short list of incompetent, corrupt and dictatorial presidents.

Haki Yetu is not just a rioting slogan

Reports in our normally very reliable newspapers indicate that a few of our high and mighty lords of politics have retained legal counsel fearing ICC indictments may be handed down against them. Further reports also indicate that some of our erstwhile human rights heroes and heroines object strongly to these men (and women) of influence retaining legal counsel. What I wish to know from the (conscientious?) objectors is whether they preach human rights for the alleged victims alone or not. In Kenya, theoretically, one is innocent until convicted by a court of law. I have no problem with the likes of Uhuru Kenyatta, George Saitoti, Franklin Bett and their fellow-travelers diverting significant amounts of their personal wealth to protecting their rather thin hides from the attentions of prosecutors, whether here in Kenya or thousands of kilometres away in The Hague. It is what the rule of law would demand of and for them. I would have no problem in them deploying their lawyers to preempt any attempt to extradite them to The Hague. I would take strong pains to champion their right to legal counsel at all costs.

However, if their intention is to defeat the course of justice using the power of their political office, then all bets would be off and I would advocate taking matters into wananchi's hands, violently or otherwise. What I would also take great exception to is the position adopted by our human rights champions: one simply cannot deny another Kenyan the right to take all legal steps to protect himself. The ones who have retained legal counsel must at the very least have faith in our judiciary. The ones who would like to organise kangaroo courts to obtain the judgments they believe these suspects richly deserve are doing our country a great disservice.

It is no longer moot to suggest that Kenya has the most dysfunctional judiciary in the world, second only to Afghanistan and Somalia. The Hague as a venue for determining the guilt or otherwise of the so-called perpetrators of the post-election violence seems like the most viable option, especially for those who bear the greatest responsibility. It would be remiss of us to deny them the right to counsel, the right to prevent their dirty laundry being aired in a court of law, even if it is thousands of kilometres away in a foreign land. Ms. Jaoko and her fellow campaigners are placing this country in jeopardy by denying their fellow Kenyans legal rights conferred upon them by our constitution, flawed as it is.

The rationale behind a judicial process is that it removes the right to retribution from individuals to a body that has credibility. Even judges are subject to it. Hasn't Justice GBM Kariuki undergone a judicial process that acquitted him of serious charges? The suspects in the violence that led to the deaths of thousands, the loss of private and public property worth billions and the displacement of hundreds of thousands must be given the opportunity to prove their innocence in a court of law. They cannot do this without the services of highly paid advocates. It is their right. Ni haki yao!

Opportunity Knocks

Now that the Prime Minister and his co-principal, the President have found a working style that works for them, it is time they started looking for that window of opportunity to do the right thing. it is becoming increasingly plain that Hon. Odinga (ODM, Langata) will not be elected President of Kenya. It is also increasingly plain that H.E. Mwai Kibaki will have no legacy to leave Kenyans save for the well-executed road construction taking place all over the country. As such, both have an opportunity to steer the country away from the likes of William Ruto, Isaac ruto, franklin Bett, William Ole Ntimama, Simon Mbugua, Peter Munya, Kiraitu Murungi, Kalonzo Musyoka, Mutula Kilonzo and all thos literate and semi-literate inciters, thieves, murderers and rapists currently occuppying the National Assembly. If only the pair of them would remove the blinders from their eyes and see the potential glory of their names in history, I would register as a voter today!

The wheel of justice grinds slowly ...

... but it grinds true! Thomas Gilbert Patrick Cholmondoley has been handed a sentence of eight, yes eight, months for the manslaughter of 'stone-mason' Timothy Njoya. Let me not join the band-wagon that will lampoon Justice Muga Apondi's sentence. After all, the accused had been accosted by armed poachers on his expansive ranch. Sure, he has a penchant for shooting 'innocent' people on his property, but the sanctity of private property cannot be violated willy nilly simply because the land-owner is a rich man.

This has been an interesting trial. Taking the better part of 3 years, it has exposed the challenges faced by those who cannot rub two shillings together. The Delamere descendant is a land-baron in all but name. His wealth in capital is almost Croesus-like. He is able to afford the best and in Fred Ojiambo, he found an advocate who clearly earned his brief. He has the choice of appealing the sentence but he would be wise not to. It has nothing to do with his pursuit of justice. He should simply thank whichever god he prays to that he was not convicted of murder, else he would be facing the hang-man's noose today. He is a lucky, lucky fellow and he should serve his term in peace and pray that no more misfortunes follow him.