Law MPs passed returns to haunt them

By ALEX NDEGWA

The Constitution of Kenya Review Act 2008, which sets specific timelines to guide completion of constitutional review, has cornered MPs now frantically seeking ways to turn back the clock.

Those opposed to the Proposed Constitution, which was passed by Parliament on April 1, and awaits publication by the Attorney General next month, are floating three options following the abortive push for amendments.

But the ‘Yes’ team is emphatic time is up for the National Assembly as the document is headed to the final organ of review — the referendum — in step with the roadmap.

It is the second time MPs are grappling with an agenda with inbuilt time lines to ensure Parliament does not delay, stall or altogether scuttle the process.

Judge Philip Waki-led Commission of Inquiry into Post-Election Violence ensured its recommendations, certain to ruffle feathers, were not entirely at the mercy of MPs.

The Waki Commission, which submitted its report in October 2008, set timelines for the establishment of the "Special Tribunal for Kenya" and its enactment into law.

Waki said failure to follow the steps on time would result in the sealed envelope with names of senior personalities accused of masterminding post-election violence being sent to the International Criminal Court in The Hague.

Parliament, which had until January 30, last year, to amend the Constitution and entrench the pact so that the tribunal was in place by March 1, rejected the Constitution of Kenya (Amendment) Bill.

But Waki had sealed the loophole in case the agreement was not signed, the Statute for the Tribunal failed to be enacted, the Tribunal failed to commence functioning as contemplated, or its work was subverted.

ICC probe

Consequently ICC Chief Prosecutor Luis Moreno-Ocampo is carrying out a full-scale investigation into the role of senior politicians and businessmen in the chaos that killed at least 1,300 people.

Likewise the Review Act 2008 was crafted with specific timelines to prevent any hold up as the document went through the four organs of review: the Committee of Experts, Parliamentary Select Committee, National Assembly, and the referendum.

At the handover of the Proposed Constitution to Attorney General Amos Wako, National Assembly Speaker Kenneth Marende expressed gratitude that the "conveyor belt did not stall in Parliament".

Immigration Minister Otieno Kajwang’ had reminded members there was a "self propelling mechanism" underscoring Parliament could not stall the process.

After MPs failed to meet the 65 per cent threshold to uphold any of the multiplicity of amendments, a last option was available.

The Act anticipated had Parliament failed to approve the draft, a tri-partite meeting involving the PSC, CoE and Reference Group — representatives of civil society and professional bodies — was to be convened to resolve the disputes.

Chepalungu MP Isaac Ruto could have toyed with this idea when he contended the vote was on a Motion (for approval), and not on the draft itself so it could be determined by a simple majority instead of 65 per cent.

But Marende, who stressed MPs must be responsible for the laws they pass, overruled him saying:

"Can we interpret the Constitution in such a way as to create an absurdity by creating a situation where it is easier to disapprove, reverse or disagree with the entire draft and, therefore, to disapprove each and every article than it is to disapprove a single article?"

PSC Chairman Abdikadir Mohammed, noting about 70 per cent of the proposed amendments only touched on the chapters on Bill of Rights and Devolution, says they can be revisited once the new constitution is passed.

But in a last ditch effort; the ‘No’ team now wants the Review Act amended to isolate contentious issues of land, abortion, devolution and Kadhis’ courts so that they can be voted on separately.

According to the Act, the question to be submitted to the referendum shall require the voter to indicate whether the voter approves or does not approve the Proposed Constitution and shall be so framed as to require the answer ‘Yes’ or the answer ‘No’.

Controversial clauses

Alternatively, the ‘No’ team wants the Proposed Constitution submitted to the referendum alongside a commitment that Parliament would amend the controversial clauses thereafter.

Finally, they are asking the President and Prime Minister to rally their troops to amend the Act and push through the amendments before the referendum vote. Are they seeking to shut the stable when the horse has bolted?

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