By Biketi Kikechi
The Committee of Experts (CoE) leaves office on Monday after achieving the historic feat of giving the country a new Constitution.
After so many false starts in a span of over 20 years, Kenyans finally ushered in a new constitutional dispensation through a process they had individually decided through a referendum in August.
Credit goes to the CoE team led by lawyer Nzamba Gitonga, which put aside personal interests to deliver the new Constitution and now they walk away with their heads high.
And the CoE Chairman’s parting shot: “We expect the political class to ensure that the implementation is done without delays to make the new Constitution operational within the required time frame.”
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Past efforts to give the country a new constitution were frustrated by political interests among commissioners, political party interests and unnecessary requests for extension of time, not out of necessity, but for monetary gain.
The Kitonga-led group surmounted many political and bureaucratic challenges and resisted pressure from many quarters to deliver the new Constitution.
“We started on a very slow note, because of bureaucracy, delays and the setting up of offices and also because funding and other resources also took time,” said Kitonga.
The CoE Director Dr Ekuru Aukot said they were happy with they work they have done and its now up to Kenyans to ensure the effective implementation of the new Constitution.
“As a committee we are happy by the support the media, politicians, Kenyans and the civil society accorded us. As we wind up our operations we urge everyone to be vigilant on the implementation process,” said Aukot.
At the very beginning, they held a meeting and agreed to focus and work tirelessly and selflessly to complete their work without requesting for extension.
They also agreed and resolved to disabuse any political interests and to base their decisions on the views collected from Kenyans.
Both decisions were informed by experiences, which showed that nothing much could have been achieved if the process dragged on towards the 2012 General Election.
Diverse views
But their greatest challenges were to amalgamate and synchronise diverse views from Kenyans and harmonise them into a manageable and broadly agreeable document.
There was also political interests: Politicians came up with extreme demands on controversial chapters like the Executive, Devolution, Land, and the Bill of Rights, with some even opposing the need for a new Constitution.
Bigger challenges emerged when issues that were not contentious in the 2005 referendum like the Kadhi courts and the right to life cropped up.
“We had not anticipated that the Church, which had been part of the struggle for the new Constitution, could raise issues that were not controversial in the Bomas draft,” says Kitonga.
They, however, presented perhaps the biggest challenge, all through to the life of CoE until Kenyans resolved them in the referendum.
The committee first invited all religious leaders to a retreat in Nanyuki over the disagreement on Kadhi courts, where they agreed and signed a memorandum of understanding.
The religious leaders later baffled CoE when they disowned the MoU and demanded the removal of Kadhi courts from the Constitution.
Another challenge presented itself in Naivasha, during the retreat by the Parliamentary Select Committee, which kept expunging some proposals in the draft.
But the most pleasant shock for the CoE was when the politicians rather easily agreed to adopt the ‘pure’ presidential system proposed by the CoE.
“We were happy with that but amazingly, some of the architects of the proposals became great opponents of the Proposed Constitution during the referendum,” said Kitonga.
Having gone through that hurdle, the CoE waited as the document went through perhaps the most crucial organ of review – the National Assembly.
They were, however, relieved that it sailed through without much opposition despite attempts by some MPs from Rift Valley to marshal support for amendments.
Kitonga was also elated: “The fact that they passed the accord was very exciting and also because the two principals supported the document at the time.”
Major obstacles
From Parliament no major obstacles stood on the way for the CoE, as they worked with the Attorney General to prepare the final document.
So how did the CoE capture the moment President Kibaki officially promulgated the new Constitution at Uhuru Park on August 27?
Kitonga recalls, “I will always remember when President Kibaki raised the new Constitution after it had been appended with the seal and the crowd roared in approval.”
Despite their role, the CoE was not acknowledged during the historic ceremony attended by foreign dignitaries, including Presidents Yoweri Museveni (Uganda), Omar al Bashir (Sudan), and Paul Kagame (Rwanda).
That did not dampen their spirits as they savoured the moment with fellow Kenyans because they assumed the failure to invite them to the ceremony was a minor protocol glitch.
So how did they succeed where others had failed?
Kitonga attributes it to the mood of the country after post-election violence when Kenyans decided that only a new Constitution would fix the national challenges.
The second attribute was that the political class was for the first time largely united apart from some leaders from Rift Valley and the Church who opposed the new Constitution.
Thirdly, it was because the CoE and other players like the Ministry of Justice were determined to ensure nothing stood in their way.
The most trying moment for the CoE was when the Government failed to release funds for civic education until they protested through the Press.
“The Act had given a specific period for civic education. We were running short of time. The resources were not forthcoming because of bureaucratic delays at the Treasury,” Kitonga told The Standard on Sunday, on Sunday.
The CoE was, however, grateful to the media and service providers who ensured the process went ahead even before funds were released.
So what are some of the memories that Nzamba Kitonga will carry home as he leaves CoE offices at Delta House in Westlands?
“I was very happy to work with the team and more so that they put aside personal interests and worked hard for the country and also with international experts who helped us achieve what we did,” said Kitonga.
The enormous task of writing the new Constitution received international acclaim, because it was seen as a way of keeping corruption in check.
The 2010 Constitution was drawn to replace the first Constitution of Kenya. It was presented to the AG on April 7, officially published on May 6, and taken to the referendum on August 4, before it was approved by 67 per cent of voters and then promulgated.
