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It’s time for Kenyans to insulate law review panel from partisan interests

By | March 8th 2009 at 00:00:00 GMT +0300

Abdulahi Ahmednasir

In the choppy, rough and raging sea storm Kenya currently sails in a quaking and quavering boat, with feuding partners as captains whose respective teams are on each other’s throat, there is a distant tropical island in sight. Reaching the island under the treacherous and tremulous conditions at sea is not guaranteed. But the hope of safe landing is simply exhilarating. The tropical island in sight is the hope of a new constitution. Whether the craft Kenya sails will hold, or the captains have enough navigations skills, or their teams have the civility to survive together under the challenging conditions, is an entirely different matter altogether. But the hope of reaching that beautiful island infatuates even the most irresponsible of the voyagers.

The inauguration of the panel of experts who in essence provide the most important organ in writing the new constitution must be welcomed. The team is headed by Senior Counsel Nzamba Gitonga who, as former chairman of the Law Society of Kenya and member of the society’s committee on the Constitution, has an excellent track record of engaging in the constitution making process.

The panel has a good blend of foreign and local experts, even though one might be unable to appreciate our fetish national obsession with foreigners. Now that the foundation of the constitutional process has been laid, the ball is in the court of Nzamba and his team to kick it in the right direction.

With the support of both ordinary Kenyans and politicians there is absolutely no reason why they cannot give us a draft by October. The size of the team provides strength. The number is manageable even in terms of how much the process will cost. For let us not forget that the previous process costed the Kenyan taxpayer a staggering Sh10 billion.

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The panel of experts must avoid five pitfalls. First, Nzamba and his team must endeavour to give Kenyans a short minimalist constitution that is free from superfluous and fanciful provisions. Constitutional realism within the context of a Third World African country must be the guiding principle. Bomas draft had too many idealistic and far-fetched ideas. Second, avoid the cut and paste route of constitutional making that is common in Africa. Third, don’t give Kenyans a document that makes a constitution through irrelevant historical analogies. Four, Kenyans need a document that has both constitutional depth and solidity. We want a draft that will endure. Lastly, keep your distance from politicians.

The above notwithstanding the constitution review faces a number of daunting challenges that may prove fatal. We must appreciate that the process is being micromanaged by politicians, being the sole creating organ and to which obligatory references must be made at every crucial stage. In fact, the defining feature of the process is how it is exclusively monopolised by politicians.

There are two categories of politicians who will threaten or even derail the process. First are those who think the final draft must be tailored to further their political aspirations or at least be seen not derail it. The second group, and the majority of the politicians fall under this category, are those who are remote controlled by the first category of politicians and will be hired or unleashed to undertake a slush and burn attack on short notice.

These two categories will kill the process once the draft prepared by the panel of experts fails to tally with their political designs and they see the Constitution as an obstacle to their political aspirations or at least that of their masters. There is another troubling problem a head. One of the main reasons that led to the rejection of the Bomas draft was the President’s refusal to lead the constitutional review from the front. As Kenyans may remember he maintained a troubling silence when every Kenyan had a view on the draft constitution. The President’s silence will be louder this time. With his impending retirement in 2012, Kibaki will have little interest in bequeathing a new constitution to Kenyans. That vacuum will be filed by the half dozen pretenders to the throne and all hell will break loose in the process.

The most distressing feature of the review is not the deliberate monopolisation of the process by the politicians, but how clever the design to exclude ordinary Kenyans has been engineered. Ordinary Kenyans will of course have their say in the referendum, but it is very important that Nzamba and his team do engage and solicit the views of Kenyans right from the start.

Despite their exclusion, Kenyans have an important role to play. They must create a firewall around the panel of experts to insulate the process from the narrow political and ethnic interest that will soon engulf it. Politicians will soon attack like a horde of hungry dogs once the main structures of the draft crystallises. Ordinary Kenyans must accord the panel of experts not just their support but all protection possible from the political predators that are lying in wait.

The writer is an advocate of the High Court. [email protected]

Abdulahi Ahmednasir law Review Nzamba Gitonga
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