Why ghosts of Bomas draft haunt Kenyans

The ghosts of the 2004 Bomas draft of the proposed constitution defeated in the 2005 referendum are back.

Its proponents, led by opposition chief Raila Odinga, want certain aspects of it included in the current Constitution.

According to constitutional lawyer and a former member of the defunct Constitution of Kenya Review Commission, Mutakha Kangu, the Bomas draft is to date the “most concerted, collective and nationally representative” constitution that could be called “truly Kenyan”.

“The 2005 referendum itself was a betrayal to Kenyans because the Bomas process was an opportune moment for Kenyans to design a constitution that would cater for the interests of all its citizens unlike the one that was foisted on Kenyans at independence,” says Dr Kangu. The Bomas draft was torn apart once Yash Pal Ghai was removed as the chairman of the Constitution of Kenya Review Commission. By the time the Wako or Kilifi draft was presented to the public for voting on November 21, 2005, everything that could go wrong had gone wrong.

In the ensuing referendum, the No (Orange) side, led by Raila, beat the Yes (Banana) led by President Mwai Kibaki by a landslide.

Fast forward to 2018, Raila’s Orange Democratic Movement (ODM) wants the country to go the parliamentary system, with a prime minister as the head of government and a president as the head of state.The president would appoint a PM from the majority party in Parliament.

Hidden agenda

During a retreat by the ODM National Executive Committee (NEC) at Lake Elementaita Sentrim Lodge in Gilgil, Nakuru County, the team proposed a three-tier government system that will be accommodating, to end an imperial presidency, and 14 regional assemblies.

Raila says this is the right thing to do because if nothing is done, 2022 will be messy.

“This country has had elections before. We had presidents, prime ministers and even chief secretaries before. There is nothing special about 2022 elections. The only thing that is special is that we have agreed that we must do things differently going forward,” Raila says.

“We also have something special in the realisation that if we don’t do the things we have set out in the MoU with President Uhuru Kenyatta, 2022 elections will amount to doing the same thing time and again and expecting different results.”

Raila was referring to the Harambee House agreement of March 9, which was sealed with the now famous handshake.

But those opposed to changing the supreme law, led by Deputy President William Ruto, say it is unnecessary and those for it are only interested in creating positions for themselves. “Time is not ripe for a change of the Constitution. Those supporting the change are only interested in positions at the expense of improving lives of Kenyans,” he says.

Ford Kenya leader Moses Wetang’ula says the push to amend the Constitution is suspect, agreeing with the DP that it is only meant to create positions for certain politicians and their cronies.

“Those pushing it have a hidden agenda,” says the Bungoma senator.

But according to Kakamega Governor Wycliffe Oparanya, the inclusion of certain aspects of the Bomas draft in the current constitution will end a one-man show where there are only a few players in the national development while the majority are spectators.

“The current presidential system, where the winner takes it all, breeds ethnic hatred that always leads to deadly violence before and after general elections,” says Mr Oparanya.