CHALLENGES 2005-2006: Kenya’s New Constitution in Limbo

By IPS Correspondents Reprint | | Print |

Joyce Mulama

NAIROBI, Dec 16 2005 (IPS) - To the majority of Kenyans, it’s becoming clearer that President Mwai Kibaki’s three-year-old government is dragging its feet over a new constitution for the East African country.

Initially Kibaki’s administration had promised that a new constitution would come into force in the first 100 days in power. But more than 1,000 days have since passed and there is still no constitution in place. The closest it ever got was a referendum, called Nov. 21 to decide on the draft constitution, which split Kibaki’s government right down the middle.

Fifty seven percent of the voters rejected the draft document while 43 percent voted for it. President Kibaki, together with his key allies from the National Alliance Party of Kenya (NAK), backed the document.

His nemesis, the Liberal Democratic Party (LDP) joined forces with the main opposition, the Kenya African National Union (KANU), in leading Kenyans into rejecting the document. The LDP and NAK were the main parties that formed Kibaki’s coalition government, the National Rainbow Coalition.

During the referendum, Kibaki and his supporters campaigned for a more powerful presidency. His opponents, meanwhile, wanted the presidential powers reduced and shared with a prime minister.

Kibaki’s opponents campaigned on the basis of a document, called the Bomas draft, an outcome of a National Constitutional Conference (NCC), which proposed the curtailing of the president’s powers. According to the Constitution of Kenya Review Commission (CKRC), the majority of Kenyans prefer the powers of the president trimmed and shared out with a proposed office of the prime minister to guard against abuse of power. In 2002 the commission collected the views of Kenyans on what they wanted in the proposed constitution.

The road towards a new constitution has been long and winding, characterised by outright political rivalry. This rivalry, between the two factions in the government, intensified after pro-Kibaki members of parliament (MPs) altered the contents of the Bomas draft, named after the venue where it was written – Bomas of Kenya – in the outskirts of Kenya’s capital, Nairobi. The alterations provided for parliament to reject or accept the draft in totality without making any amendments.

The alterations made it possible for the Bomas draft to be replaced by another document, the Kilifi proposal. This proposal provided for an executive president and a nominal prime minister appointed by the former. The Kilifi document was named after the coastal town of Kilifi, where a section of MPs, mostly from NAK, drafted the alterations to the Bomas document.

Based on the strength of the Kilifi document, Attorney General Amos Wako drew a final draft constitution, which was rejected at the Nov. 21 referendum. The rejection, analysts say, demonstrated a lack of confidence in the Kibaki administration.

Kibaki’s defeat at the referendum saw him sack his entire cabinet. Even though he reconstituted a new one last week, seven former ministers from the LDP did not appear on the list of the new cabinet.

Despite the split in the coalition, the clamour for a new constitution is still on; both from the LDP and KANU, who have since formed the Orange Democratic Movement.

Kenya’s civil society groups also met in Nairobi on Dec. 8, under the auspices of the Nairobi-based Kenya Human Rights Network, to jumpstart the constitutional process that they said cost tax payers about 135 million dollars. Most of the money has allegedly been spent on salaries and allowances of the 17 members of the commission, something that sparked public outrage.

“We want to take our rightful place in the constitution making. We left the process to the politicians and they messed it up. Now, we want to keep every eye open to ensure that Kenyans get the constitution they want, not the one that has been fashioned by politics of the day,” Cyprian Nyamwamu, a member of the group, told IPS.

The civil society organisations estimate the process will end in June 2007, after thorough consultations with stakeholders that include the private sector, political parties and faith-based groups.

But to prevent politicians from hijacking the process again, safeguard measures are required, campaigners warn. “There is need for an Act of parliament to protect the process from both political and legal challenge,” said Ng’ang’a Thiong’o, a constitutional lawyer, who practices in Nairobi. He was referring to the previous process that led to the draft constitution being rejected at the referendum. The process, he said, was hijacked by politicians who used it as “a forum to champion their own self-interests”.

Nonetheless, president Kibaki said his government was still committed to giving Kenyans a new constitution. “My government will facilitate consultations to open the way for a legal framework that will guide the nation towards achieving a new constitution,” he noted during celebrations to commemorate the country’s independence on Dec. 12.