John Michael Njenga Mututho (KANU, Naivasha) is on a campaign to better regulate the alcoholic beverages industry by moving a motion that would seek to regulate the manufacture, sale and distribution of all alcoholic beverages in Kenya. He has a point. In the recent past, many Kenyans have died or been blinded by the effects of methanol-laced alcoholic beverages, some produced in industrial units. It seems that the standards bureau has been ineffective in ensuring that the quality of what we consume is regulated effectively. This is not the first time that Kenyans are suffering injury or death after enjoying a drink at their local, but it seems that the government is not interested in checking the proliferation of distilleries that peddle such toxic offerings to the unsuspecting public. Every time there is such a mishap, the Provincial Administration swings into action and a few jua kali distilleries, usually in our expansive slums, are raided and the contents of their drums poured down the drain. This is what Hon. Mututho seeks to change.
The National Campaign Against Alcohol and Drugs Abuse Authority (NACADA) is the government's chief agent in educating the public about the harm that alcohol and drugs cause in people. It has been a failure for the most part. The number of youth who indulge excessively in alcohol and drugs is increasing. NACADA had a victory in seeing the Tobacco regulation Bill become law in 2008. If they have their way, the Alcohol Regulation Bill will also become law. However, it will not solve the underlying problem of alcohol and drug abuse among the youth.
In Kenya, even after the East African Breweries started insisted on carding people at clubs and pubs, images of teenagers smoking and drinking still continue to emerge. One news story showed how the students of a secondary school in Nairobi's Ngara area, in uniform no less, managed to access a pub near their school even on school days. Nairobi School was famous for the number of students caught in police swoops in Kangemi pubs. It got so bad that the police actually set up a police post in the school to ensure that the children concentrated on the studies and not on happy hour at the hundreds of vibandas that dotted Kangemi. Up-country students, more often than not, know the location and price-lists of every chang'aa den in the vicinity of their schools and frequently end up being the number-one customers. This is a problem that is getting out of hand and in some districts, it has become an epidemic.
Even if Hon. Mututho and NACADA successfully steer the alcohol Bill through Parliament, unless they start to educate the youth about the pernicious effects of alcohol and drugs, the problem of lethal brews will not go away and the arrest and prosecution of chang'aa brewers will not cease simply because there is a new law that requires them to meet KEBS standards. In the West, this problem is usually tackled by punishing heavily the owners and managers of pubs who 'contribute to the delinquency of the youth'. This should be a rule adopted in Kenya. It should be made prohibitively expensive for a pub owner or such similar person to offer for sale, sell or supply any person under the legal age any alcoholic drink or tobacco product. The children should not be let off either. In addition to constant education on their ill-effects, teenagers should face the consequences of their actions too. Some form of punishment is warranted that impress upon their still-forming minds that it is wrong to circumvent the law, even when one is a minor. In the end, if we value the children that we have charge over, we cannot sit idly by as an entire generation becomes captive to substances that are clearly harmful to their health and evey parent, guardian, care-giver and adult should take part in ensuring that minors are protected, even from themselves.
If you have been wondering why our political leaders make such poor speeches, wonder no more. It emerges that none of them has a professional team of speechwriters to do the heavy lifting. President Kibaki and Prime Minister Odinga rely on a tried and tested system that relies on career civil servants to do the speech-writing for them. It shows in how the speeches lack the political inspiration that, say, speeches by American presidents have.
During the 2007 General Election, Raila Odinga attempted to run what was essentially an American-style campaign. It was a failure. President Kibaki did not even bother to campaign. The less said of the other political aspirants, the better. They relied on the old system of calling on our basest instincts to make their political statements. This is the reason why it is impossible to remain inspired by a politician and why we tire of them so soon after the last ballot is cast.
The Promulgation Ceremony at Uhuru Park was an opportunity for our leaders to inspire us to greater heights of self-sacrifice and dedication to the good of the country. They failed us once again. The Prime Minister styles himself as a rhetorician of the first order and he is capable of inspiring feelings of loyalty among the multitudes that throng his rallies. But he is no JFK or MLK. His speeches are bland and unremarkable, remembered only for the target of his particular ire when they are made. They are easily forgotten and it takes a dedicated Fourth Estate to regurgitate for the masses the paltry offerings of the perennial presidential candidate. In Salim Lone, he seemed to have a person who could, conceivably, re-shape his engagement with the people, but he quit in frustration seeing that his public relations skills were of no use to a man who will not, or is incapable of, listening to any voice other than his own.
Dr. Alfred Mutua, the government spokesman, has also failed to articulate the president's thoughts effectively. His press briefings have the feel of a Soviet-Era love-in, where the leader speaks and the masses adulate, whether they heard the speech or not. His job is akin to reading the menu at a restaurant; the information that he supplies could be gleaned from the front pages of our dailies without straining the gray matter.
Movie directors tend to take liberties with the subjects of biopics, but they usually stay true to the essence of the person they are filming . about. Watching the film Boycott, one cannot but admire the way Martin Luther King, Jr, prepared and rehearsed fro his public engagements. He would research deep into the night the remarks that seemed to off-the-cuff but which packed a powerful message to inspire the masses in their boycott of the racially segregationist policies of Alabama. President Ronald Reagan in his first inaugural address is remembered for intoning the words that government is not the solution to the (economic) problems that bedevilled the American people in 1981, but the problem. President Obama, as the Democratic Party's Presidential Candidate, will be remembered for inspiring the American people with his messages of change and hope during his remarkable presidential campaign. The same cannot be said for Raila Odinga or President Kibaki.
PLO Lumumba is eloquent and erudite in equal measure. His public speeches are usually well-drafted and delivered in a tone that evokes the spirit of Martin Luther King, Jr. But, even he, falls short of inspiring the nation. The statements that he has made after his confirmation as the new Director of the Kenya Anti-Corruption Commission, have been loaded with rhetoric ut have been short of policy statements of what he intends to do or how intends to do it. He does not inspire confidence going by his statements.
The next few years will require the nation to rally around the difficult task of implementing our progressive Constitution. The role of inspiring the people to greater sacrifices and dedicated hard work will fall upon our leaders. If they are incapable of writing, or having someone else write, inspiring speeches towards this goal, the job of implementing the Constitution will start to feel like a chore and the people will quickly lose interest and start to complain of the ills that the Constitution has failed to eradicate. Simply telling the masses that this is the best Constitution ever is not enough. We must feel a need to participate. We must be inspired. Our leaders should not fail us in our hour of need for we need them more today than ever before. Where will the inspirational speeches come from, I wonder?
Ukambani has been reduced to three counties: Makueni, Machakos and Kitui. At present it has 17 MPs, led (if that is what it is) by the Vice-President, Kalonzo Musyoka. However, his hold on the leadership of Ukambani is not assured with the presence of Charity Ngilu and John Harun Mwau in the field. In recent months he has lost the support of the two Kilonzos, Charles and Kiema, both members of his party, ODM-K as a consequence of his vacillation on the question of whether or not to ratify the Proposed Constitution of Kenya. Even Hon. Ngilu's recent rapprochement with the Vice-President was not an endorsement of Kalonzo's leadership of the Akamba Nation.Save for the staunch support of the Hons. Mutula Kilonzo and Johnstone Muthama, Kalonzo increasingly cuts a lonely figure. Who can forget Hon. Wavinya Ndeti's harsh rebuff of the Vice-President some time ago? Or the continued antics of Kalembe Ndile?
The battle for supremacy ahead of the 2012 presidential elections sees Kalonzo as a viable candidate, especially if the so-called KKK alliance with Hons. Ruto and Kenyatta still holds true. However, as a Daily Nation cartoon so hilariously asked, what does Kalonzo bring to the table? Hon. Ruto was instrumental in rallying the Kalenjin Nation, almost to a man, in rejecting the draft. Hon. Kenyatta has been identified as the primary flag-bearer from Central Kenya, if the Maragwa 'fund-raiser' was an indication of the feelings of the House of Mumbi. Kalonzo could not rally the Akamba behind him in a convincing manner. Indeed, he was even thrown out of Kathiani by the same people he would be begging for votes in 2012. It seems his halcyon days, when he managed to pass between Raila and Kibaki in 2007, are behind him and he has to start from scratch rebuilding his Ukambani juggernaut afresh. Will he succeed?
It is said that you underestimate the Vice-President at your own peril. He has demonstrated that he is capable of removing obstacles that stand in his way. Poor Mutua Katuku and Kalembe Ndile learnt this the hard way when the ODM-K juggernaut rolled over them in 2007. Katuku has faded from sight and Kalembe is busy trying to resurrect his political career by jumping onto every anti-Kalonzo bandwagon that rolls into town. However, Charity Ngilu and John Harun Mwau proved that Kalonzo's writ does not run large over the entire Ukambani region and that it was possible to outspend and out-strategise the wily V-P.
Just like in the dying days of the Nyayo Era, it is now said that the man to beat in 2012 will be Raila Amolo Odinga. Who among the minnows will it be: Ruto, Uhuru or Kalonzo? Those reading the political tea leaves tell us that Ruto, Uhuru and Kalonzo must present a united front if they have a chance of denying Raila the presidency a second time around because between the three of them they control a larger political constituency than Raila. If this is true, Ruto and Uhuru have already proven that for the time being they command a far larger and visible political constituency than the V-P; that they have cemented their places as the leaders to beat in their respective regional strongholds. For Kalonzo to play at their level, he must prove that he commands a far larger constituency in Ukambani than what was revealed during the recently concluded Referendum. He must overcome the perceived view that 'his' people no longer trust him and that he can still bring out the Akamba en masse to vote for him.
2012 is unique because we will be choosing a President and Deputy-President. The winning candidate does not have the luxury of appointing his supporters from the legislature to the Cabinet. That particular pork-barrel has been yanked away by the New Constitution. Therefore, Kalonzo has to persuade his erstwhile allies that he is the primus inter pares, the first among equals. Will he be able to do so especially with his apparently diminished pull in Ukambani? He must also ensure that a sizable chunk of the 290 elected MPs in the 1st Parliament of the 2nd Republic consists of his allies or members of his political party otherwise he may be unable to govern effectively with what will essentially be a hostile Parliament nipping at his heels. Kalonzo must begin the arduous task of building a winning national coalition that will ensure that his party or his party in a coalition with other parties controls Parliament. This means ensuring that he teams up with people who will ensure that the Presidential votes from a majority of the 47 counties swings for him. If he is unable to do this, hs career is as good as over. If he loses the presidential election he will not even have the satisfaction of being appointed V-P again or a Cabinet Secretary. The Constitution, again, has removed this option from the table. He can't even be appointed to some parastatal or an ambassadorship somewhere. He may have to retreat to the Kalonzo Musyoka Foundation, though no one knows what exactly it does or indeed, whether it has done anything.
But it is in Ukambani that his machinations may come to nought. There will be 3 counties up for grabs with about 60 county seats in contention. John Harun Mwau, Charity Ngilu and Kalembe Ndile will ensure that Kalonzo spends valuable capital ensuring that his supporters control Makueni and Kitui Counties. For the moment, it does seem that Ruto and Uhuru can count on their supporters controlling the seats in the Counties in their backyards. This is not the case in Ukambani for Kalonzo. He has managed to lose the support of the MPs in his own party. It may be that Kiema and Charles Kilonzo and Wavinya Ndeti are not the powerhouses they style themselves to be, but they can ensure that the battle is lost. It may be that their rebellions are signs of things to come. Between them and Charity Ngilu and John Harun Mwau, they control 5 constituencies and approximately 25 county seats. These are sufficient to create momentum against the incumbent V-P and create the impression that he does not have a grip on things in his own house. That could prove dangerous while running for the presidency. It may create the impression nationally that he is not a safe pair of hands to hand over the reins of state to. And that would put paid to his ambition of being president.
For the time being, the politicians will be busy ensuring that the Constitution is implemented in a manner that will ensure that they continue to enjoy many privileges when the next general elections occur. That means that Kalonzo has an opportunity to rebuild his political constituency and build up sufficient political capital such that in 2012 he will be a serious player in the same rank as the resilient Prime Minister. That mans persuading, arm-twisting and otherwise commanding support among the remaining two power-brokers. If he fails to prepare sufficiently, 2012 will be his Waterloo and he will have none to blame but himself.
Ronald Reagan (1911-2004) knew a thing or two about politics. At the height of the Cold War, when the Americans were negotiating the Strategic Arms reduction Talks (START) and the Strategic Arms Limitation Talks (SALT), Reagan stated that one had to trust but verify the results of that trust. Mutula Kilonzo (ODM-K, Mbooni and Minister for Justice, Constitutional Affairs and National Cohesion), wants to rush the process of implementing the Constitution. I say: Trust but Verify!
I very rarely agree with Donald B. Kipkorir, but he is right that we cannot sit idly by as the politicians run away with the process. The Constitution gives us the opportunity and the right to participate in the process. The record of activities where the politicians have taken the lead has been a disappointing one, to say the least. In the absence of strong political parties and with their penchant for 'regional balancing', whatever they do tends to have the whiff of compromise and political horse-trading around it. This is the system that we seek to dismantle and bring about a re-awakening of the Kenyan political spirit, one that was last seen in the dying days of the FORD movement of the 1990s. If we are to have a successful implementation of this Constitution, we must ensure that the process is not left in the exclusive hands of a cabal that has done its best over the years to take care of their interests at the expense of ours. In the absence of a credible civil society movement, it is left to the Mwalimu Matis, Donald B Kipkorirs, and Timothy Njoyas to keep the politicians honest. However, this does not mean that we sit back and relax: we must re-examine why and how we participate in the political process and take the required steps to become full partners in the implementation of the Constitution.
Our apathy as a nation permits us to blame the state for all that ails us. In the old order it was OK to state that opportunities were denied to the citizenry when it came to political participation. This excuse is no longer tenable. The Constitution places an onerous obligation on the citizenry to educate itself on its contents and to take its rightful place in its implementation. In the coming years, the National Assembly shall make laws in regard to the Land Chapter, Devolution and the Recall of Parliamentarians and Members of County Assemblies. We must ensure that the Bills that get debated in Parliament reflect our desires. It should not be that Mutula Kilonzo and his pals in the Parliamentary Select Committees drive the process with a view to protecting their interests alone. If he does so, we must challenge him at every step. It would otherwise be business as usual and we will have ourselves to blame if the politicians fuck up this process.
We must, therefore, take Hon. Kilonzo's plan to rush to Parliament Bills on the implementation in the absence of the Constitutional Implementation Commission or the Constitutional Implementation Oversight Committee very seriously as he will be operating without the scrutiny or oversight of two very crucial public institutions. This would be his opportunity to ensure that our priorities are given short shrift. I must point out though, that the Minister has proven himself a man in search of a destiny too. The way he shepherded the Constitution through its final stages was inspiring. He showed that it was possible for a politician to put the nation before the individual and he should be lauded for it. This does not mean that we should give him a free pass, but that we should ensure that he does not stray from the path he has followed since he became the Minister for Justice. The same should go for the Principals. Just because they oversaw the successful referendum campaign and saw to it that the process largely remained peaceful should not blind us to the fact that in the past they have sometimes taken us for granted and acted without the proper consultation required of leaders in their positions. President Kibaki is set to retire in 2012 and Prime Minister Odinga would like to succeed him as Head of State. The president may be tempted to monkey around with the succession, to the extent that he may wish to engineer a set of implementation laws that would benefit his yet-to-be-named successor. Prime Minister Odinga and his competitors would also like to monkey around with the implementation process to give themselves advantages where none are anticipated. This is why we should keep an eagle eye on them to ensure that they play by the rules.
The up-coming by-elections in Makadara, Starehe and Juja give an insight to the thinking and intentions of the various party leaders. They have all decided to give direct nominations to their preferred candidates. This is in direct contravention of the various parties' constitutions and an indicator of how they see the rules in relation to their political contests. If this is their idea of 'playing by the rules', it is even more imperative that we be extra vigilant for they still seem to operate with the same mindsets that got us into trouble in the first place. This Constitution is too important to be left to politicians and they need to be reminded time and again that they are not gods, but mere mortals who must answer to us for all that they do. So, over the coming weeks, we have a duty and a responsibility to ensure that when they act, they act in the national interest and when they don't, we call them on it as forcefully as we can. Trust, but verify!
Can governance and the constitution be truly separated? OkiyahOkoitiOmtatah wishes to peddle half-a-loaf in his assertion that the two can indeed be separated and that in the current climate the question of governance can be addressed separately from that of the Proposed Constitution. I submit that he is wrong and tragically misinformed as to the role that a good constitution plays in the governance of a country.
The many ills that have been visited upon this nation can be laid directly at the feet of the mis-governance of our political, religious and civil society leaders and all can be blamed squarely on a constitution that has been easy to abuse, misuse, amend and ignore almost at will. The three presidential regimes have demonstrated that the power enjoyed by the executive has been used to great effect in the mis-governance of Kenya and all derived their authority from the provisions of the constitution. To posit that their actions can be divorced entirely from the constitution is posit a fallacy that has no bearing in reality.
When we compare the Constitution of Kenya with the Proposed Constitution, it is clear that we are making a clean break with the Westminster Model that is established under the current constitution, for it has failed miserably in fomenting a governance structure at the service of the citizenry. The Proposed Constitution seeks to insulate the executive as much as possible from the interference of the political class while at the same time providing the tools for the effective management of national resources with adequate oversight and accountability.
In the separation of the executive from Parliament and in the creation of an accountable structure for the devolution of political power and resources at the county level, we seek to create a system where the management of national and local resources is as efficient and effective as possible. Of course, it is still possible that this new system will come to grief but that is a possibility that must be weighed against the certainty of retaining a system that has been the bane of this country for nigh on fifty years. At least in the governance of this country, the Proposed Constitution creates structures that are light years ahead of the current ones in terms of addressing the needs and aspirations of Kenyans: the separation of the executive and the National assembly; the oversight of Parliament in relation to key national decision-making; the establishment of truly independent national institutions; the devolution of political power and national resources to the county level; the clarification of the relationships between the three arms of government with clearly delineated mandates, functions and powers ... the list is pretty long.
The current system, where the political class retains an overwhelming capacity to inflict upon Kenyans decisions that are unreasonable, arbitrary and capricious has resulted in human rights abuses, civil rights abuses, miscarriages of justice, grand and petty corruption, a loss of national prestige in the comity of nations, the mismanagement and waste of national resources and many other ills. We now have the opportunity to re-write our history, beginning with a clean slate for what is definitely going to be a long hard slog. No one should be naive enough to think that the transitional period will not be accompanied with turmoil or chaos; the refuseniks will see to that. Only the blindly optimistic think that the financial and other costs of the implementation of some of the provisions of the Proposed Constitution will be low or negligible. The number of interested parties against the successful implementation of the draft is long and growing as the ranks of the refuseniks acquire new members. If we do not manage the transition period well, we may never survive the adoption of the Proposed Constitution.
However, to my mind, the risks are worth it if in the end the possibility of a Kenya that can hold its head high, a Kenya that looks out for its own is achieved. We must confront the ills of this country with our eyes open and this draft is the first clear step in that direction. The current constitution provides no avenues for the effective participation of the individual in the management of national priorities. The political process has been privatised and retained in the hands of a few individuals whose interests are more of the selfish kind than of the nation-building one. The number of men and women who have grown fat off the sweat and toil of other is long - simply count the number of MPs that have been elected since Independence and you get an idea of the numbers of leeches that have been sucking the national veins dry of its blood. We will not even talk of the even larger numbers of individuals and corporations that have benefited directly and indirectly in ensuring the 'right man' has been elected to high office. The proof of the inherent iniquities in the current constitution can be seen in a national infrastructure that is old, broken and inefficient.
The link between governance and the constitution is real. One cannot have one without the other. Therefore, to talk about voting YES is to admit that this link has been a millstone round our necks and that it is time to try something new; to vote No is to refuse to recognise that the ills of mis-governance can be laid at the foundations of a moribund system as established under this constitution. Given a choice between retaining the current constitution or adopting the Proposed Constitution, I know how I would vote. Do you?
We have entered the middle-period in the Referendum Campaigns. The mood is lazy and the campaigns are merely getting by on soundbites. We seem to be waiting for a spark to rejuvenate the campaigns and send a message that the Referendum is worth something. The lines are drawn and no one is in doubt where their 'leader' stands on the proposed draft, whether he has read it or not.
When you see the President and Prime Minister on Prime Time News, you get the sense that their campaign is flagging, hence the need to pack the dais with as many waheshimiwas as possible. It is the same with the Ruto Insurgency - it no longer has the novelty it enjoyed a month ago and it seems that the strange bed-fellowship between the politicians and the clergy is a bad marriage that will be annulled come August 5th.
Mzalendo Kibunja's outfit has somehow managed to enliven the proceedings, but not by much. President Moi and Maina Njenga seem to be getting by on opposite sides of the fence, with nary a bad word between them. This is not like the 2007 Campaigns; there is no life in this game. The passion is gone, and the only wingnuts still in it to win it are to be found on Facebook.
The debate has boiled down to those who are for the draft support abortion, 'elevation of Islam', and instability. Those against it are for the status quo, and are anti-reformists. What we need is a better narrative. What if the campaigners declared that this was their trial run for the 2012 elections. Then we could fid out how good they could be when Uhuru Kenyatta, Kalonzo Musyoka, Martha Karua, Moses Wetangula, and other small fries stated their positions unequivocally and declared the status of their sundry alliances. Make no mistake about it - 2012 is between Raila Odinga and someone else, perhaps a Ruto-led alliance or a Kalonzo divide-and-win strategy, or a money-fuelled charismatic Uhuru challenge. August 4th couldn't come soon enough.
The spectre of religious intolerance is looming large over this nation. The rhetoric that has been deployed by my Christian co-religionists against the Kadhis' Courts seeks to conflate the entrenchment of the courts in the current constitution and the Proposed Constitution with the rubric of equality and separation of religion and state. This is a false argument and it must be challenged by all civilised peoples in Kenya.
For there to be equality as the Christian clergy demand, they must be able to prove that the entrenchment of these courts has had adverse effects on the enjoyment of their rights as Christians, and not merely the fact that there are no similar courts specifically designed for the Christians in the constitution is unequal or is evidence of unequal treatment by the State.
When the 25 bishops and their lawyers won their case in the High Court, it seemed as if they had finally managed to persuade the majority of Kenyans that indeed the courts were proof positive of discrimination against them and that the continued existence of these courts in the constitution constituted a continuing denial of their fundamental right to equal treatment by the State. However, a closer examination of the substance of the High Court judgment lays bare the lack of any judicious reasoning. The judgment was further proof that the judiciary is in dire need of reform and that the sooner that this is accomplished the better it will be for all those who seek justice in the hallowed corridors of the law courts.
However, while it is understandable that the judiciary would seek to stamp their authority on their right to read and interpret the constitution, the goings on outside the courts have laid bare the fact that the aim of the litigants in this matter was to perpetuate their unwarranted attack on my Muslim brethren by other means. They have managed to deploy events that have taken place in this country to indicate the extent to which Kenyans in general, and Christians in particular, are under threat from some Muslim conspiracy to Islamicise this nation.
Sunday after Sunday the leaders of the Evangelical and Pentecostal branches of Christianity in Kenya have sought to paint Muslims in a dim light. The core business of moral and spiritual upliftment of the congregation has been subsumed by this deep-seated desire to re-write history and proclaim this country a Christian nation at the expense of national cohesion or integration. It does not occur to them that their argument that they are not against the Kadhis' Courts per se, but only wish to be treated equally under the law is both wrong and misguided. The argument that these courts are a 'parallel' system is wrong-headed and meant to poison the atmosphere against the Muslims. Explanations that the Muslims' access to these courts only relate to matters of personal status have fallen on deaf ears with the result that it is now feared that there is a majoritarian conspiracy to deny Muslims in Kenya rights they have enjoyed since before the colonisation of this country.
There are many challenges facing this country, especially when it comes to the area of political discourse, political organisation and participation, governance and distribution of national resources for development. This loud preoccupation with the Kadhis' Courts has blinded us to the very real problems associated with the Constitution of Kenya as it stands today. Many Kenyans were too young to appreciate the enormous powers that the presidency has enjoyed since 1963, and the ever increasing grasp of the State when it comes to the enjoyment of individual rights. Just the yesterday a police man who was shown to clearly have acted in excess of his authority in the suppression of a riot was acquitted by the High Court in Kisumu. This is a pattern that can be discerned clearly throughout Independent Kenya's history: the assassinations of Tom Mboya, J M Kariuki, Pio Gama Pinto and Robert Ouko have remained unsolved; the land barons of Kenya have remained untouchable for as long as they have existed; the financial scandals that have bedevilled us have been perpetrated since Independence. These ills and many others can be laid at the feet of this distorted constitution and the Kadhis' Courts have been used as a basis to hoodwink Kenyans that all their problems can be laid at the feet of the Kadhis' Courts.
It is sad that Kenyans do not have the capacity or will to face their real problems with their eyes wide open. It is sad that Kenyans have been misled for decades by their political leaders who have striven to paint a distorted picture of the reality of their laws and their government. It is now becoming increasingly apparent that our leaders, both temporal and spiritual do not want or unwilling to educate Kenyans honestly about the need for a new beginning. Not even the leading lights of the YES campaign have framed their debate in terms that reveal the complete and utter inadequacy of the current constitution. This role is left to a few voices in the desert and they have been undermined at every turn. Some of them have even been co-opted into the Establishment and have abdicated their duty to tell truth to power. As a result, our public discourse revolves around personalities and issues of little national consequence as the Kadhis' Courts and abortion.
The Balkanisation of Kenya began way before the first African was elected to parliament. It has been perpetrated since Independence with no respite. Kenyans are now so clearly wedded to the idea that their tribe is supreme that any other project will fail before this fundamental bugbear is addressed. None of our current leaders is capable of honestly grasping this nettle and speaking the truth. It is feared that such truth talking will lead this country down a road to instability and chaos, perhaps even violence. But this fear should not stop us fro attempting to have an honest debate over these questions with the aim of uniting this country once and for all around core principles of good governance and equitable treatment of all peoples, regardless of their ethnicity or creed. Even if the Proposed Constitution receives overwhelming support, without an honest reckoning of our failings, it will remain a piece of paper to be fought over by the elites of this country to the eternal detriment of the majority. The only solution is an honest debate on all these questions, an awakening of our political, moral and spiritual senses and an acknowledgement that we have treated each other shabbily since 1963 and that we must change if we are to achieve all our national goals and objectives. Anything less, and we will simply be whistling in the wind and barking at the moon like wild dogs.
I wish to respond to Mr. Kipkorir’s commentary (“Proposed law has good provisions, but therein lie clauses
that may destroy us”, Sunday, 23rd 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 GuantanamoBay 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 GantanamoBay, 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: “Privateland 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.
-->I wish to respond to Mr. Kipkorir’s commentary (“Proposed law has good provisions, but therein lie clauses that may destroy us”, Sunday, 23rd 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 GuantanamoBay 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 GantanamoBay, 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: “Privateland 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.
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.
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.
