RIGHTS: A New Constitution Remains Distant Dream for Kenyans

By IPS Correspondents Reprint | | Print |

Joyce Mulama

NAIROBI, Oct 31 2004 (IPS) - Kenyans are fed up of waiting for a new constitution which seems to be dragging on indefinitely.

To break the impasse, several meetings, attended by stakeholders such as legislators and civil society groups, have been held this year to put the constitutional talks back on track.

The latest one will take place in the coastal region in the first week of November. ‘’This retreat is meant to hammer out contentious issues in the draft constitution, paving way for delivery of a new constitution to Kenyans who drove the process,’’ William Ruto, chairman of the 27-member Parliamentary Select Committee on the constitution, told IPS in an interview Oct. 26. The committee oversees the progress of the constitutional review.

The draft constitution was drawn by the Constitution of Kenya Review Commission, after collecting views from Kenyans on what they wanted in the document. Appointed in November 2000, the commission released its findings in September 2002. Immediately, following the findings, the 629 delegates at the National Constitutional Conference began discussing the draft, which if passed, would constitute the country’s new constitution.

The delegates, who have been discussing the draft since April last year, include government ministers, parliamentarians, civil society groups, as well as religious and community leaders.

The contentious issues in the draft constitution, which was endorsed by more than half the delegates on Mar. 15 this year, include a proposal for reducing the powers of the president and delegating them to a newly created post of prime minister. The National Constitutional Conference said Kenyans wanted a people-driven government.

The proposal has, however, been rejected by delegates allied to President Mwai Kibaki, who cannot stand the idea of a weakened presidency.

The draft constitution proposes a prime minister with executive powers to appoint and supervise the cabinet, leaving the president to perform mostly ceremonial functions.

The proposal has caused a crack in the ruling National Rainbow Coalition. The Liberal Democratic Party (LDP), the junior partner in the coalition, supports the creation of premier’s post. Its leader, Raila Odinga, the minister of roads and public works, has been tipped for the job.

Opposing the deal is the coalition’s senior partner, the National Alliance Party of Kenya (NAK). Its leader Kibaki, along with his supporters, hails from central Kenya. The group’s outspoken campaigner is Justice and Constitutional Affairs minister Kiraitu Murungi.

The two groups have been wrangling over the draft, shifting the constitution-making process from a legal to a political process that smacks of ethnicity and power struggle, according to experts.

‘’There is confusion because the interests of the warring political elites or ethnic coalitions are not secure in the draft constitution. There is a contest between the political elites over power relations,’’ Mutahi Ngunyi, a political scientist, told IPS in an interview in Nairobi Oct. 26.

Upon endorsement of the document in March this year, it was supposed to be handed over to Attorney General Amos Wako who would in turn pass it over to parliament. But continuous bickering, coupled with a court ruling in favour of three delegates who rushed to court seeking to stop the attorney general from receiving the document, has paralysed the process.

Critics claim the government used the three delegates to stop the process.

When president Kibaki came to power in December 2002, he pledged a new constitution within the first 100 days in office. He failed. In December last year he extended the deadline to June 30, 2004, which again passed without indications of a new constitution.

This prompted thousands of Kenyans, under the umbrella of Katiba Watch, a Nairobi-based pressure group, to take to the streets to demonstrate against failure by the government to honour its promise. The demonstrators clashed with the police. Scores of people were seriously injured, prompting outcry from human rights groups.

‘’We are now in the process of collecting signatures from Kenyans to articulate the point that Kenyans still want a people-driven constitution. Kenyans have not forgotten what they want; a new constitution,’’ the groups co-convenor, Wahu Kaara, said. Katiba Watch is scheduled to hold a public rally in Nairobi on Dec. 4.

Kaara said: ‘’It is now clear that the government wants to retain the old constitution which gives the president leeway to enjoy absolute power, something that has been abused over the years, without taking into consideration what Kenyans want.’’

Kaara was referring to a proposal by an 11-member sub-committee of the Parliamentary Select Committee on the constitution. The committee suggests retention of power by the president with a less functional prime minister, overturning the draft constitution, which calls for devolution of executive powers.

The full Parliamentary Select Committee on the constitution is expected to consider these proposals, which if approved, will be forwarded to parliament for final approval.

Political analysts say the manipulation by the government contravenes section 28 of the Constitution Review Act, which forbids parliament to make any alterations to the draft. ‘’The parliament is only supposed to adopt or reject the draft in total,’’ Ngunyi said.

The government has used every trick in the book to get parliament to rework the draft document, including coming up with Bills seeking to empower parliament to amend the draft constitution. The most glarring was government’s tabling of the Constitution of Kenya Review (Amendment) Bill to allow for the House to alter the draft in March this year.

These manipulations, say critics, have played a great role in delaying a new constitution and could impact negatively on the government during the 2007 elections.

‘’The Kibaki presidency will be defined not by the fight against graft, the introduction of free primary education, judicial reforms…. But by whether or not he gives the country a people-driven constitution, that has not been shaped or defined by the political interests of powerful individuals,’’ Ahmednassir Abdullahi, chairman of the Law Society of Kenya, noted in a commentary published in a local newspaper Oct. 24.

The government introduced free primary education early last year that saw enrolment of more than one million children previously locked out of school. It also embarked on judicial reforms in October last year, resulting in the suspension of 23 judges from the bench over claims of judicial misconduct including corruption.