RIGHTS-KENYA: Ruling Party Hijacks the People’s Constitution

By IPS Correspondents Reprint | | Print |

Joyce Mulama

NAIROBI, Feb 5 2005 (IPS) - Kenya’s civil society groups are protesting over a law that gives parliament sweeping powers to alter the country’s draft constitution, without involving the people.

The parliament has been urged to repeal the law. Civil society groups argue that the new law interferes with the concept of a people-driven constitution.

The problem heightened after President Mwai Kibaki in December silently assented to a controversial Bill that allows a simple majority of parliament to amend the draft constitution. The public only learned of the assent in the local newspapers Jan 25.

The contested bill provides for the draft constitution to be adopted or rejected in totality by parliament, which has no power to make any alterations to the document whatsoever.

Kibaki’s assent derives its legality from the Constitution of Kenya Review (Amendment) Bill which was passed by parliament last year. The Liberal Democratic Party (LDP), a junior partner in the ruling coalition National Rainbow Coalition (NARC) and the main opposition party, the Kenya African National Union (KANU) boycotted the vote, leaving only Kibaki’s National Alliance Party of Kenya (NAK) to pass the bill.

Contentious issues in the draft constitution, including reduction of presidential powers and creation of an executive prime minister’s post, have been the reason for the split and political infighting within the ruling coalition.

Spearheaded by the minister of roads Raila Odinga, LDP supports downsizing of presidential powers, with Odinga being seen as a likely candidate for the premier’s post.

But justice and constitutional affairs minister Kiraitu Murungi and his national security counterpart, Chris Murungaru, who are close to Kibaki, have fiercely opposed reducing the president’s powers.

Using every trick in the book to have the draft constitution discussed in parliament, the NAK has also managed to maneuver the president to assent to the Constitution of Kenya Review (Amendment) Bill.

Kenya’s long-awaited draft constitution was released in September 2002 by the Constitution of Kenya Review Commission. The negotiations began in 2003 at a National Constitutional Conference (NCC) in the outskirts of the capital Nairobi, with over 600 delegates participating. Appointed in 2000, the commission had travelled across the country collecting views from the public on what they wanted included in the draft, which if passed, will constitute the country’s new constitution.

Findings of the commission showed that Kenyans wished a system whereby powers would be shared between the president and a prime minister to minimise abuse of power. Under the current constitution, drawn before independence from Britain in 1963, the president enjoys unlimited powers.

The quarrel over the constitution in the ruling coalition has led to a delay in giving Kenyans a new constitution. President Kibaki, who came to power in December 2002 on a platform of a new constitution, pledged a new document within the first 100 days in office, a promise that he never kept.

Fed up of delaying tactics, civil society groups, involved in constitutional reforms, have formed a pressure group, called ‘Yellow Movement’, to mobilise support against the bill.

‘’We are saying that if parliament is left to alter the draft constitution, then it will not represent the view of Kenyans. A constitution is for the people and therefore should be made by the people, and not parliament,’’ Jedida Wakonyo, a co-convener of the ‘Yellow Movement’ told IPS this week.

Comprising 16 pro-reform groups, the ‘Yellow Movement’ holds a silent protest every Wednesday to the gates of parliament, adorning yellow ribbons symbolising change, and carrying placards with constitution messages. They intend to carry on with the protest until parliament reopens in March 2005.

‘’Our message is that things are bad and we want change now. Change by the people, not by a selected few from parliament,’’ said Wakonyo, who is also executive director of the Nairobi-based Legal Resource Foundation.

According to the movement, if parliament does not repeal the law giving it powers to amend the draft constitution, the movement will launch a parallel constitution review process, and take it to the people.

Women organisations, too, are enraged by delay of ratifying the draft constitution, which they say contains numerous positive packages for women.

‘’The proposed new constitution has a lot of gains for women. It addresses things like Affirmative Action, which is what women have been fighting for. Women want a third representation in all elective posts of decision-making,’’ Caro Nyambura, programme officer of the Nairobi-based Coalition on Violence Against Women, told IPS in an interview.