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.
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.
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.
"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!
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.
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!
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.
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!
