What else is not right in this document?

By Dominic Odipo

Does Kenya have two national anthems? This might sound strange, but if you read the Proposed Constitution closely, you will see what we mean. Two versions of the national anthem are carried in subsection (b) of the First Schedule.

The one on the left is in Kiswahili while the one on the right is in English. The problem is that the one on the left does not translate into the one on the right. Should it, should it not or does it not really matter?

The first line of the third verse of the Kiswahili version reads: "Natujenge taifa letu" which should translate into "And let us build our nation." But the English translation appearing against it is "Let all with one accord".

The forth line reads: "Tuungane mikono" which should translate into "Let’s join hands" but the English version reads "And the glory of Kenya", a completely different idea. The fifth line reads: "Pamoja kazini" which should translate into "Together at work" or "Working together "but the English version against it reads "The fruit of our labour".

So there we are. One country two national anthems!

With only two days to go before we vote on this Proposed Constitution, those who can are presumably going through it with a magnifying glass just so they don’t miss a comma. Doing so the other day, two sections caught my attention. Both point to what we can expect to happen beginning this Thursday.

According to Section 263, if the ‘Yes’ side of this debate carries the day, a new constitution shall "come into force on its promulgation by the President or on the expiry of a period of 14 days from the date of publication in the Kenya Gazette of the final result of the referendum ratifying this Constitution, whichever is the earlier"

This means that, after the final results of the referendum are published in the Kenya Gazette, the President must sign into law the new constitution within 14 days.

Raging momentum

If he fails to do so, then the new constitution will formally take effect after 14 days, with or without his signature. In other words, the President’s hands have already been tied. He will have absolutely no power to stop the raging momentum of the new constitution, if ‘Yes’ wins.

Put another way, by this Thursday evening, President Kibaki could become the weakest president this country has ever had.

The draft constitution, if approved at the referendum, will begin sweeping away his powers even before it is formally promulgated.

If the new law is poised to sweep away so many of the powers and privileges of those who are so forcefully and vociferously campaigning for its passage, what will it actually do to those opposing it? Or, to paraphrase, how is this country likely to deal with the political momentum that passage of this draft law is likely to generate?

Is it possible, for example, that passage of the Proposed Constitution could create the sort of generic political momentum that would make it virtually impossible for general elections to be fended off until the end of 2012?

According to Section 9(2) of the Sixth Schedule "If the coalition established under the National Accord is dissolved and general elections held before 2012, elections for the first county assemblies and governors shall be held during 2012".

Could there be one or two poison pills hidden in this sub-section, particularly with regard to the tenure of the current MPs?

This sub-section is saying, in effect, that President Kibaki and Prime Minister Raila Odinga can dissolve the current Parliament and call a new general election any time after the new constitution has come into effect or, roughly, any time from the beginning of November, this year. All they need to do is to declare the National Accord dissolved.

The only difficulty would be putting in place the legal administrative machinery that could conduct a general election at short notice.

Unexpired term

Section 10 of this Schedule also leaves this possibility open by stating that "The National Assembly existing immediately before the effective date shall continue as the National Assembly for the purposes of this constitution for its unexpired term..." But nowhere in the Schedule is the phrase "unexpired term" defined, directly or indirectly.

Specifically, there is no reference to December 2012 as the end of the term of the current National Assembly, which means that if Parliament were to be dissolved before December, 2012, its term could constitutionally expire on whatever date the President and the Prime Minister determine.

The reality is that no one really knows what the net or immediate effect of a ‘Yes’ vote will be. We shall all just have to wait and see.

—The writer is a lecturer and consultant in Nairobi.

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