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How Kibaki-Raila fallout stalled constitutional reforms

By Moses Nyamori | April 25th 2019
Tony Gachoka interviewing Prof. Yash Pal Ghai.

President Mwai Kibaki’s rejection of a parliamentary system of governance led to his fallout with Raila Odinga, and stalled the push for reforms that had propelled their coalition to power.

Constitutional lawyer Yash Pal Ghai recounted how the two politicians – who he said initially backed the parliamentary system – went their separate ways after Kibaki was elected in 2002 and made a U-turn in support of a presidential system.

Prof Ghai, who chaired the Bomas constitutional conference, said Raila was “so bitter” that he led then Kanu chairman Uhuru Kenyatta, William Ruto, Kalonzo Musyoka, Musalia Mudavadi, Joe Nyagah and Najib Balala in rejecting what was popularly known as the Wako Draft.

The Wako Draft, named after Attorney General Amos Wako, was the blueprint of a proposed new Constitution that was intended to replace the Lancaster House Constitution that had been in place since Independence.

The draft, which was supported by the Kibaki Government, was subjected to a constitutional referendum in 2005 where the ‘No’ side won with 58 per cent of votes.

Kibaki dramatically dismissed his entire Cabinet as the country’s hopes for a better supreme law dimmed.

It is instructive to note that the Kibaki-Raila fallout was also fuelled by an aborted memorandum of understanding between the two leaders in the run-up to 2002 General Election where the law would be changed to accommodate Raila as a powerful prime minister.

“As we progressed with the process… at that time Kibaki said he wanted a parliamentary system. He said ‘I don’t want an imperial president and I want a parliamentary system that will not concentrate power in one person. Raila, too, was in support of a parliamentary system,” Ghai recounted during an interview with Tony Gachoka on KTN News’ Point Blank show last night.

“But once we were able to take out (retired President Daniel) Moi and time came to push for the parliamentary system, Kibaki changed his mind. Elections had already taken place and he was now President. Odinga was very angry with him,” Ghai said.

His recollection of the abortive campaign for a parliamentary system, where a prime minister voted for by MPs would take charge of the day-to-day running of government and relegate the president to a ceremonial head of state, comes at a time when there is a clamour to revive contents of the Bomas Draft.

The Bomas Draft was another constitutional reform blueprint that preceded the Wako Draft. It proposed transfer of presidential powers to a premiership.

Proposals presented to the Building Bridges Initiative, which was established by Uhuru and Raila, suggest that the Executive be expanded to end the current winner-take-all politics that has been cited for election-related violence.

Some of the proposals have suggested the creation of a powerful premier position with two deputies.


Speaking in Kisumu, Uhuru said there was need to end the winner-take-all system. Raila said the country needs to change to a parliamentary system of governance with the president as head of state and a premier as head of government.

“At Bomas, we came up with a hybrid system. This is very close to the French one where you have a president elected by the people and a prime minister who is the leader of the majority party,” Raila said in a previous interview.

Ghai said Kenya would have avoided the 2007/2008 post-election violence that saw the butchering of at least 1,100 people and dozens others uprooted from their homes in the mayhem that erupted after Kibaki was declared winner in contested election.

“The parliamentary system would have avoided the 2007 chaos as it would have created more centres of power,” he said.

Ghai said an agreement reached in Naivasha on the centres of power was scuttled by politicians who viewed themselves as Kibaki’s successor and did not want the presidents’ powers to be whittled down.

He, however, described the current Constitution as a progressive document citing its strong Bill of Rights.

Ghai said he supports a parliamentary system and proposed that the Constitution be amended to expand the Executive.

“I was pushed aside when doing the 2010 Constitution. Politicians had come on top in the process as compared to the Bomas process where politicians were the minority. I would say that the Naivasha process was driven by politicians who were just thinking of themselves,” he said.

Bill of Rights

He added, “I would say this is a very good Constitution. It has very strong Bill of Rights. It has received a lot of praises globally. But I think there is need to change, not so much but from the presidential to a parliamentary system. In the presidential system there is concentration of power.”

Ghai said a system where one person has so much power is not good for a country where leaders are not faithful to the Constitution.

He also accused the Independent Electoral and Boundaries Commission (IEBC) and the Registrar of Political Parties (RPP) of not adhering to the electoral process.

Ghai said he had occasionally confronted the RPP for registering political parties that did not meet legal thresholds, as well as the IEBC for not adhering to the electoral law.

“No politician has ever followed the provisions of the Constitution. If they did, we would have no problem. IEBC has also not followed the Constitution. I have called IEBC about some of these issues but they forget. I have talked to the Registrar of Political Parties that you cannot register this political party because it does not meet the requirements but they don’t listen.”

The constitutional scholar, who was born in Ruiru in 1938, also accused former Attorney General Charles Njonjo of exiling him for 17 years.

Ghai said he had taught in Dar es Salaam for 10 years when the University of Nairobi asked him to come and head the law faculty.

But believe it or not, one day when I was preparing to come to Nairobi, I got a message ‘don’t come’. Some of my former law students who were now working at the AG’s chambers told me ‘you will be locked up immediately’.

‘You were a fool to open yourself to such threats at that time’.

“So, I was in exile for 17 years on the orders of then Attorney General Charles Njonjo,” Ghai said.

Njonjo served as the country’s Attorney General  from 1963 to 1979.

Ghai continued: “I am very bitter he (Njonjo) threw me out of my country and profession. He was a very arrogant man. As it is, he lives 100 yards from where I live (but) we don’t greet each other.”

He also recalled how the British were opposed to Africans studying law.

“I am a Kenyan born in Ruiru and I studied here except for my law studies. I studied law at Oxford and Harvard because I couldn’t study in Africa.”

He said that after completing his studies, he went to Dar es Salaam to establish a law school for East African students, adding that many Kenyan lawyers studied there.

“You had to go to Britain to learn law. It was outrageous that the whites kept Africans out of law schools. It was much later that Makerere and the University of Nairobi established law schools,” he said.

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