Experts should avoid blunders that may undermine law review

By Kamotho Waiganjo

I was surprised by the vitriol heaped on the National Council of Churches of Kenya (NCCK) when it issued a statement urging for minimum, now rechristened, stabilisation reforms.

In the statement, NCCK, an age-old stakeholder in reforms, was clear that it was unequivocally committed to the search for a new constitution. Whereas the statement, though diplomatic in language, implied a real fear that complete overhaul of the constitution was becoming a mirage, and only visitors from Mars believe we will have a new constitution before 2012.

To its credit, the Committee of Experts’ activities in the last month have reawakened hope. The August meeting with political parties in Mombasa showed a consensus on issues hitherto considered non-negotiable was emerging. Unfortunately, the momentum was not sustained and the process died soon after.

We may yet pay a heavy price if this momentum is not reenergised.

But it is the meeting with the Reference group that has rekindled optimism. Participants at the meeting report a genuine desire by various stakeholders to reach consensus.

It affirmed the fact that well managed, negotiations, even on extremely divergent positions, could produce miraculous results.

The joint statement on the Kadhi courts, though later disputed by some in the church, opened a real opportunity to build on dialogue on deeply contested issues. The challenge for the committee is to maintain momentum on the emerging consensus without the hurry to produce a draft, yet remain within the statutory timeframes.

Publication of a draft will unfortunately produce winners and losers and squander the opportunity the committee may have to act as an honest broker. We all remember the tragedy of Prof Yash Pal Ghai in 2003.

Despite this renewed anticipation, we all know that serious minefields lie on the road to a new constitution. On the one hand is the reality that constitution making has traditionally become a forum for flexing political muscles. For as long as there are serious conflicts within the political establishment, the desire to use the review to obtain political mileage will mean the process can be hijacked. But even the lack of conflict is not necessarily a guarantee for progress. Let us not cheat ourselves, only those who think they won’t be in power come the next elections desire a new constitution.

Consequently, the balance of power between PNU and ODM does not favour constitutional reform. If both parties realistically believe they will form the next government, why would any of them wish to be saddled with the responsibility of implementing a new constitution as their first duty?

It is easier to come to power under the current law and oversee reforms on your own terms. That is realpolitic. If my assessment is correct, it may be that the ally we should be pursuing is President Kibaki, for he definitely won’t be in the team next season.

With these realities in mind, the call by NCCK does not seem so evil. But political reality coupled with the inability of the team to adequately midwife key negotiations may cost us a new constitution yet again. In the meantime, we are hurtling towards the 2012 General Election.

It is critical that we do not reach the elections before we have resolved key reform issues that will make the next election fair, credible and acceptable. Ideally, that should be resolved through comprehensive reforms.

But every builder knows that even as you hurry to complete that beautiful villa, repairing the leaking roof in your current shack is always a great idea, particularly as the El Nino beckons.

—The writer ([email protected]) is an advocate of the High Court