Politicians stand in the way to new set of laws

By Biketi Kikechi

It is politicians who have worked hard over the years and continue toiling and moiling to spoil the opportunity for Kenyans to get a new constitution.

That is why, with only two months remaining for the country to decide its destiny through a referendum on the proposed new constitution, some forces are determined to scuttle the process.

What is happening is a replica of what has been standing on the way of efforts to give the country a new constitutional dispensation in the last two decades.

Attorney General Amos Wako who published the Proposed Constitution after Parliamentary approval has indicated the going may not be easy.

Without substantiating, Wako warns of a looming "major war" over the review process: "I was elated when I finally published the Proposed Constitution, for I knew the tough and rough constitutional journey was about to conclude. But I was wrong."

Wako now concedes tougher times lie ahead and declares his alertness and readiness to deal with emerging mischief and challenges.

The current process is bedeviled by lack of funding, court rulings with far reaching consequences, duplication of printed drafts and destruction of copies meant for civic education — all aimed at stopping the referendum.

Lacked goodwill

The Committee of Experts (CoE) urgently needs Sh330 million for civic education, but the money has not been forthcoming.

While the Ministry of Finance maintains it released Sh100 million to the CoE and that there was no further funding, the CoE says it has never received funds from the ministry.

But such complications and hurdles have followed the constitution review process since 2002 to the 2005 referendum, when the country was, like now, on the brink of getting a new constitution.

Bickering in the Constitution of Kenya Review Commission almost scuttled the process at the time, when commissioners accused the chairman, Yash Pal Ghai, of colluding with Canadian consultant Prof Phil Knight to write the draft constitution.

The commissioners were in Western Province taking the last views from Kenyans before retreating to Mombasa for drafting when the news leaked to the media.

Before proceeding for drafting, the commission was expected to collect views from President Moi, who was visiting Mombasa at the time.

"The President refused to meet us because he received information that sexual orientation (gay and lesbian rights) had been included in the draft against the wishes of Kenyans," said a former CKRC commissioner.

From there on, it became obvious that the process was headed for the rocks, because it lacked the goodwill of the President, who enjoyed veto powers.

Prof Ghai appeared to have invited enemies for the review process from the Judiciary in September 2002, when he made it known that the country needed urgent judicial reforms.

New life

Ghai said: "Unless the country’s judicial system is urgently reformed, the review body would find it hard to breathe new life into the constitution."

He added: "A strong Judiciary is a pre-requisite for a strong constitution that guarantees the rights and freedoms of Kenyans. Its role cannot be gainsaid."

Without an independent and pro-active Judiciary to interpret and enforce the new document, he said, Kenyans would continue to suffer.

Just like now, Prime Minister Raila Odinga who was the PSC chairman was pushing for the speedy completion of the process.

In September 2002, lawyers Tom K’Opere and John Ngonjoro went to court and acquired orders to stop the process.

Justice Richard Kuloba of the High Court, now retired, stopped the commission and its chairman Ghai from reviewing the constitution.

The two lawyers had argued that all judges were going to lose their jobs had the Bomas Draft Constitution been adopted at the referendum.

Prorogued house

Ghai refused to sign the court order barring the commission from writing the constitution and CKRC Secretary Patrick Lumumba also later refused to accept service from the court.

President Moi later prorogued Parliament sine die in preparation for the 2002 elections throwing the Bomas conference into disarray and immediate closure.

In July the following year, attempts were made to cancel the National Constitution Conference at Bomas of Kenya when police stopped delegates from accessing the venue. Ghai and a small group of delegates reviewing the Constitution defied armed police by holding a protest meeting outside the locked gates.

They met for one hour and censured the Government for postponing the third sitting of the national conference that was due to reopen later that year.

The group was demonstrating because the conference was put back so that MPs, who made up about one third of the delegates, could attend Parliament to consider revising a number of proposed new laws in the Bomas Draft.

President Kibaki took power in 2003 promising to deliver a new constitution in five months, but the process was never completed leading to more frustration for Ghai.

Disenchanted and increasingly isolated by his commissioners, Ghai sought an appointment with President Kibaki to state his case, but the appointment was never granted.

On January 13, 2004 delegates to the Bomas III talks came wearing green ribbons as a mark of solidarity, vowing to fight for their right to complete the constitution review.

Their show of defiance came two days after a meeting sponsored by the opposition coalition struck consensus on contentious issues outside the National Constitutional Conference.

Tension and confusion marked the first day of the talks, as delegates insisted that only they were mandated to write a new constitution.

Ghai left the country for Hong Kong, leaving the process to fellow commissioners who continued taking instructions from their political godfathers, thus throwing the process into more confusion.

The end product was the 2005 Wako Draft whose content was heavily influenced by politicians, hence its rejection at the referendum.

It is a pity that saboteurs are again making every desperate attempt they can muster to stop the country from attaining a new constitutional dispensation.

Opinion poll

The confusion in the civic education programme means politicians are likely to have a field day in manipulating voters on how they should vote come August 4. According to last Saturday’s opinion poll results, 61 per cent of Kenyans have not read the Proposed Constitution, and civic education has only reached five per cent of Kenyans.

At the launch of the civic education programme, CoE chairman Nzamba Kitonga told Kenyans "they were holding their destiny in their own hands", given the gravity of what lay ahead.

And with the latest development, a cautious Kitonga has again warned the country to be extra careful on the way to go come the referendum.

"We have given the enemies of the new constitution a blank cheque to get away with propaganda of misinforming Kenyans on the Proposed Constitution.

Kenyans have to be vigilant because it appears nothing is going to stop the powerful schemers from achieving their sinister motives.