Divergent views should not sabotage quest for new law

One would think that after overcoming many hurdles spanning two decades, the search for a new constitution would by now be a shoo-in, with the referendum only serving as a legal necessity. Not so, considering recent divergent views and apparent hardening of positions.

This is not unexpected as constitution-making is a notoriously precarious process that relies on compromise. That said, it should not escape mention that no constitution realistically has the capacity to satisfy the nuances of all interest groups. The document Parliament handed over to Attorney-General Amos Wako for publication, warts and all, is therefore bound to provoke debate.

The Church has particularly come out strongly to oppose sections it deems a threat to the Christian faith. It is noteworthy that this is a constituency that cannot be taken for granted. The contention is that Article 26, which deals with abortion, and Articles 169 and 170, that touch on the Kadhis’ Courts, ignored the views of the Church. At issue is sanctity of life and the argument that Muslims should not be given preferential treatment over other religions by having their own courts.

Path of dialogue

After threatening to galvanise their congregations for a ‘No’ vote, it is encouraging that Church leaders have now taken the path of dialogue.

Talks between Christian clerics and Government leaders, led by President Kibaki and Prime Minister Raila Odinga, are therefore, a vote of confidence to consensus. The two groups may not yet be reading from the same script, but there certainly is hope that the issues at the heart of the Church’s opposition will be thrashed out.

The committee appointed to spearhead dialogue should not waste this opportunity.

Since Christian leaders have always accused politicians of sabotaging the quest for a new constitution, we call upon them to practice what they preach by exercising tolerance and embracing compromise.

More worrying is the threat by a group of MPs to shoot down the Proposed Constitution if its views are not taken into account. After the Naivasha and Kenya Institute of Administration talks, capped by the chance to make amendments on the floor of the House, their opposition seems to be coming too late in the day.

Parliamentarians lost the opportunity to reach broad consensus when they took hardline positions, informed by ethnic and party interests. The MPs opposed to the Proposed Constitution are dissatisfied with clauses on governance, devolution, land and ethical issues. Though unfortunate, their opposition is a consequence of democracy that should be respected.

Nonetheless, the argument that the Constitution of Kenya Review Act sets the threshold for amendments too high smacks of political chicanery, as the law was passed by the same Parliament in which they sit. We think such objections should have been raised earlier.

In any case, the Act gave the process self-propelling abilities and made it difficult to mutilate the document on a whim precisely because politicians have in the past misused their privileged position to place unnecessary barriers on the path to a new constitutional dispensation.

Harsh judgement

As legal experts have pointed out, it may be too late to amend the Proposed Constitution at this stage. This should not in any way diminish the importance of reaching a common position to support the document in its present form and introduce desired changes after the referendum. After all, the constitution is not cast in stone.

For now, passing the new law is tied to the fate of the country. Holding the 2012 General Election under the current constitution would, for example, allow the Executive to make unilateral appointment of electoral commissioners and judges, a situation that could ferment perceptions of unfairness in the ballot and judicial processes.

Indeed, history will pass a harsh judgement on politicians and Church leaders if they replay divisions and acrimony that characterised the 2005 referendum where a new constitution was rejected. We call for the voice of reason.