Ghai on ministers who stifled work of his law review team

By Juma Kwayera

Five years after key figures in past and present Governments frustrated efforts to write a new constitution, former commissioners of the Constitution of Kenya Review Commission (CKRC) delve into the intrigues that threw the process into disarray.

Speaking to The Standard on Sunday at a time the Committee of Experts on Constititutional Review is finalising a draft for public and parliamentary debate after the House reconvenes this week, former CKRC Chairman Yash Pal Ghai and commissioner Mutakha Kangu, recalled the narrow path they walked.

In the countdown to the 2002 General Election, they said the greatest hurdle was the then ruling party Kanu. But when power changed hands, they had to contend with an indifferent Executive and a clique allied to President Kibaki that relegated the reform agenda to the back seat.

Apparent disinterest

Kibaki’s disinterest in reforms, Prof Ghai says, began when an opinion poll in late 2002 showed Liberal Democratic Party (LDP) led by Raila Odinga and National Alliance of Kenya (NAK) would win if they formed a coalition.

To him, the genesis of the crisis that bedevilled the Narc government was sought in the dishonouring of MoU between Kibaki and Raila.

"When Kibaki was nominated to lead the opposition and the prospects of winning improved, he lost interest in reforms. Only Raila remained interested," says Ghai.

These views are shared by Kangu.

"It is intriguing to see how politicians can shamelessly shift positions when regime changes," says Kangu.

While the two expressed cautious optimism that the Justice Nzamba Kitonga-chaired Committee of Experts would deliver a draft acceptable to all, they pointed out crafting the law that barred former commissioners of CKRC from being appointed was a deliberate move to sideline independent-minded candidates.

From the onset, Ghai and his initial team of 15 commissioners had been set up to fail, with barriers being erected every step of the way.

The first storm Ghai had to weather was a revolt by the finance committee, which, according to the two, were demanding four-wheel drive cars and disproportionately high remuneration.

"These were people who owed their loyalties to the establishment and acted as if they had instructions to frustrate the process. When I tried to explain to them that this was a national assignment for which they would be remembered by generations, they threatened to boycott sittings until their demands were met," says Ghai.

One of the most harrowing experiences was when he was forced to accept personal security — two at home and one accompanied him wherever he went.

"I recall one day I was walking from The Stanley Hotel in 2002 when a call came through from State House. The caller demanded to know what I was doing in the streets without a guard. When I explained that it was easy to move on foot because of the heavy traffic, he became mad with me," recalls the former CKRC chair.

Fly on the wall

The guard was supposed to be the fly on the wall — constantly feeding State House with information about Ghai’s whereabouts, whom he was meeting, and his private life. All commissioners who were perceived to be stubborn were under surveillance and their phones were bugged.

Senior figures in the Moi administration and President Kibaki’s government played a major role in defeating reforms that would have resulted in whittling down the Executice powers.

From the perspectives of the two legal experts, the scheme was to intimidate, blackmail, divide or bribe to frustrate constitutional review.

When the review commission was expanded from 15 to 27 members to accommodate the faith-based Ufungamano Initiative to make it "representative enough," individuals who had vested interests in Kanu and Narc regimes, they say, found a forum to fight for the retention of the status quo.

Another of Ghai’s frustrating moments came in October 2002 as he prepared to host the national delegates conference at Bomas of Kenya. He had successfully talked the President into agreeing to postpone the 2002 General Election to March 2003.

"We had problems getting to State House. When we finally met the President, he was in a foul mood and even threatened to suspend the reforms. At first he did not want the idea of postponing the polls lest the opposition thought he wanted to cling onto power," says Ghai.

Moi later agreed to postpone the polls to allow time for the conclusion of the review. When the team that met the president arrived at their offices from State House, they were shocked when it was announced in the 4 o’clock news bulletin that Parliament had been dissolved. That meant the review had been suspended until a new government was elected.

Against this backdrop, Ghai says, the reforms agenda was being juggled to suit circumstances.

"In Kenya, there is a group that views the Constitution as an instrument of good governance, social justice, and protection of human rights. Another group views the Constitution as an instrument of power or one that regulates access to power," says Ghai.