Whatever the outcome, reform baton should not be dropped

By Kamotho Waiganjo

The Discounting Insertiongate, the referendum draft is finally out in the public domain and the debate is now between the ‘Yes’ and ‘No’.

The possibility of a multiple issue referendum and the option for renegotiation on contentious issues is no longer feasible.

I have listened to numerous debates on the process and one of the assumptions many Kenyans seem to have is that if the draft is not passed, the review process will be reopened; the Committee of Experts will continue to seek consensus so that we can finally get a document on which there is unanimity.

The sad reality is that if the proposed law fails, we will have to ask Parliament to design a new review process. In an environment, which will have been poisoned by the referendum campaign, it is difficult to see that happening.

Furthermore, the positioning for the 2012 elections and the tensions that will be heightened by the International Criminal Court investigations will prejudice the chances for political consensus. I pray that I am wrong but it is possible the most we can hope for are minimum reforms that will seek to restructure the electoral process in readiness for 2012.

 I have my doubts as to whether there will be political goodwill to support even such minimum reforms. And even if they do happen, such reforms will not sufficiently deal with the issues that are causing schisms in our nation since their focus will be on political power arrangements. If such minimum reforms do not occur, the natural consequence is that we shall go into 2012 within the current constitutional framework.

That will once again leave constitutional reform at the mercy of a new government, which, having tasted the goodies under the current constitution, will be reluctant to allow any significant changes so soon after the elections. DÈj‡ vu 2003.

But assuming that by some miracle Parliament agrees to redesign the process, it is almost guaranteed Parliament will avoid a referendum. It will be argued that a referendum is too costly and it is divisive. Quite possibly, the next constitution will now be written by the same parliamentarians that we cannot trust. For one to understand Parliament, it is important to note that even though the Naivasha consensus delivered the impetus for broad political support for the draft, it is also true that the PSC tried to remove many of the citizens gains in the draft.

Parliamentarians had diluted the economic and social rights. They had retaken the role of determining their salaries. They had completely neutered the Senate. And parliamentarians had done this well knowing the document would still be taken before the people in a referendum. Can you imagine what Parliament would do if it had the final say in writing the entire draft?

I am also a democrat, and I am willing to accept that if a majority of Kenyans say ‘No’, that is what the country deserves. It just means that we will have to keep toiling longer for a new dawn. Whatever the outcome of the referendum, we must covenant that the baton for reform shall not be dropped, however heavy it gets.

—The writer is an advocate of the High Court