POLITICS-KENYA: Constitution in the Spotlight Again, as Elections Near

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Joyce Mulama

NAIROBI, Aug 18 2006 (IPS) - The fraught process of constitutional review in Kenya marked another chapter this week, with an announcement by President Mwai Kibaki that there would be no partial reform of the constitution ahead of general elections next year.

This came after certain parliamentarians proposed changes, dubbed “minimum reforms”, saying another whole scale review of the constitution was not feasible before the 2007 poll; the reforms include having the president stripped of his exclusive right to appoint members of the 21-person Electoral Commission of Kenya (ECK).

With the tenure of most current commissioners coming to an end next month, the fear is that Kibaki might include government supporters amongst the new appointments, who could exercise undue influence over next year’s vote. The ECK oversees presidential, parliamentary and local government elections in the East African country.

Another key demand was for presidential authority to be reduced, and for the head of state to share power with the newly-created post of prime minister, and two deputies.

This echoes the wishes expressed by Kenyans to the Constitution of Kenya Review Commission, a body appointed in 2000 to discover what form citizens wished their new constitution to take. In nation-wide consultations, the commission found that Kenyans wanted presidential powers to be curtailed, apparently in reaction to abuse of these powers by previous heads of state.

Reduced authority was included in the initial version of the new constitution that was subsequently drawn up: the so-called “Bomas draft”. It was named after “Bomas of Kenya”, a cultural venue outside the capital of Nairobi where the National Constitutional Conference (NCC) met in 2003 and 2004 to hammer out a new constitution. The NCC comprised delegates from a cross-section of Kenyan society.

However, ruling party legislators later changed the Bomas draft to maintain strong powers for the head of state. Under their revisions, a non-executive prime minister would have been appointed by the president.

Alterations to the Bomas draft divided the ruling National Rainbow Coalition (NARC), prompting one of its factions, the Liberal Democratic Party, to join forces with the opposition in lobbying for the draft constitution to be rejected during a referendum held in November 2005 – this under the auspices of the Orange Democratic Movement (ODM).

Reports indicated that Kibaki and Liberal Democratic Party leader Raila Odinga had agreed Odinga would be given the post of prime minister, in return for supporting Kibaki in elections that brought NARC to power at the end of 2002. A number of politicians pushing “minimum reforms” have also expressed interest in the premiership.

Those who opposed the draft constitution adopted the orange as their symbol, while constitutional supporters chose the banana – this in a bid to assist illiterate Kenyans during the referendum campaign, which claimed several lives.

Almost 60 percent of people who voted in the poll rejected the draft constitution.

“People made a statement by rejecting the draft constitution. People were not for the constitution that the government was proposing because it was geared towards government interests and not the interests of the people,” said Hilda Obyerodhiambo, deputy director of the Citizens Coalition for Constitutional Change – a Nairobi-based non-governmental organisation.

Parliamentarians who have spearheaded the latest “minimum reforms” are drawn largely from the ODM.

But, the proposed changes have been dismissed by civil society organisations.

“This clamour for minimum reforms is aimed at demobilising the national momentum for the long desired comprehensive reforms,” said a statement issued this week by groups involved in overhauling the existing constitution, which has been in place since Kenya gained independence from Britain in 1963.

These organisations have instead called on government to present a plan for how a new constitution can be provided.

In March this year, authorities appointed a commission to advise on just that. But Obyerodhiambo has little faith in the body.

“The commission was just to pass time. There is no political will because the government has reneged on previous pledges to deliver a new constitution,” she noted.

Kibaki initially promised a new constitution within 100 days of coming to power.