Kenya:The unending struggle for a new constitution

The struggle for a new constitution dispensation is as old as independent Kenya. Attempts by Kenya’s first Vice-President Jaramogi Oginga Odinga (Raila’s father) to have the current constitution reviewed in early 1960’s were fiercely opposed by the powers that be. Instead, the ruling elite ganged-up and created a one-party state prompting the emergence of a powerful presidency– a monarch of sorts.

In 1992, then President Daniel Moi agreed to the repeal of Section 2(A) of the constitution, legally re-introducing multi-party politics in the country. But this was hardly preceded by change as Kenyans had anticipated; instead Moi took the chance to manipulate politics of the day in his favor to extend his stay in power. In 1997, following protracted calls for review that were punctuated by countrywide mass demonstrations, MPs including Kanu legislators formed Inter-Parties Parliamentary Group (IPPG) whose agenda was to create a level-playing ground ahead of the General Elections. President Kibaki led the opposition to the negotiation table in his capacity as the Leader of the Official Opposition.

Following the 1997 election, the Kanu Government finally agreed to a full review of the constitution though sharp differences later on emerged on the composition of the review team and who between the state, parliament and the people should drive the review process.

Finally, all political parties settled on a “people-driven” constitution that saw Constitution of Kenya Review Commission (CKRC) hold public hearing all the 210 constituencies and compiled a report as per the views of the people.

A National Constitutional Conference (NCC) was held at Bomas in Karen/Langata area between April 28, 2003 and June 6, 2005. During the conference serious differences emerged touching on several Chapters of the draft top among theme being the Executive, Devolution, Land and Religious Courts. The adopted version by the delegates at the Bomas Conference was challenged in a court of law and declared “unconstitutional” since the process leading to its adoption was likewise “unconstitutional”. In the end, the country ended up with two documents, the original draft (quashed by High Court) popularly known as Bomas draft and the revised version (by parliament) referred to us the Wako Draft (was drafted by a team of experts led by AG Amos Wako).

The Executive

The Bomas draft, commonly associated with Raila Odinga and ODM, vests the executive authority of the Republic at the national level in the President, the Deputy President, the Prime Minister and Ministers. The President should remain as the Head of State, Commander-in-Chief of the Defense Forces and the Chairperson of the National Security Council. The President, however, would be elected through a popular vote and such a candidate would have to receive more than 50 percent of the votes cast and a run-off must be held in three weeks time if none of those running manages more than a 50 percent vote. The president can only serve for a maximum of two terms of five years each. The Deputy President shall be the principle assistant to the president and shall act as the president in the event the Head of State is incapacitated or out of the country.

The Wako draft, favored by Kibaki’s PNU side, gives the president immense powers to “make and terminate appointments” and constitute and abolish offices of the Republic. This was seen by many as an attempt by the Government side to create room for Kibaki, who by then was facing a backlash from within his own party members, to create ministries and public offices with a view to reward his allies and in the end stem discontent. In the Wako draft rejected by the people, the President enjoys powers to appoint and dismiss the Cabinet “at will” (including the PM) without consulting parliament.

On the Premiership, the Bomas draft that Raila wants adopted in its entirety, the PM is the Head of Government whose work shall be to coordinate the work of ministries, prepare legislation, Preside over Cabinet meetings and is answerable to parliament.

The Wako draft instead reduces the PM to a mere Leader of Government Business in parliament, a role currently played the VP. In this arrangement, the PM would be directly accountable to the President rather than parliament.

Bomas draft proposes that the PM is the MP who is the leader of the largest political party, or a coalition of parties represented in parliament, or if such a leader is unable to command the confidence of the House, the MP who is the leader of the second largest political party, or a coalition of parties represented in parliament.

However, the Wako draft leaves loopholes for mischief: the president proposes an MP for appointment to the National Assembly for appointment as PM. On receiving the proposal, the Speaker summons parliament for a vote to confirm the appointment. If supported by a half of the Members the names passes, but if it fails, the president can make a second proposal. In the vent the two proposed names don’t sail through; the president shall be at liberty to appoint any MP as the PM. The ODM lieutenants agued that such an arrangement could easily be open to abuse as the president could deliberately propose unpopular candidates so that they can be rejected, giving him leeway to appoint a PM of his choice without reference to parliament.

Devolution

While the Bomas proposed four levels of Government (National, Regional District and Locational), the Wako draft proposed just one level – the District. Bomas draft proposed 14 regional government (whose work would be to coordinate the implementation of projects in all districts within that region), 70 district Governments and the Nairobi Metropolitan Area (with 4 boroughs). The Bomas draft fixed the number of districts out of fear that parliament may take advantage of any constitutional flaws to create many districts out of political expediency rather than economic and social need. The Wako draft also gave the president mandate to create new districts. The ODM side feared the clause may create room for manipulation, especially if the incumbent creates more districts in areas where he has solid political support.

While Bomas proposed the limits in the interference in the functioning of devolved units by way of creation of the Senate (Upper House), the Wako draft proposed the formation (by an Act of parliament) of Forum for District Governance. ODM opposed this arrangement equating it to District Focus for Rural Development established in 1980s by the Moi regime to economically uplift marginalized communities, but ended up enriching areas perceived to be politically-correct and impoverishing opposition strongholds. The basis of argument was and continues to be “devolution versus delegation”.

Land

The two documents and the parties from either side agreed on the formation of a National Land Commission (NLC) but sharply differed on leasehold. Both drafts proposed a 99-year leasehold but the parties failed to agree on the limit of land a person can own or lease. The ruling elite was opposed to any such limits as many, if not all, have huge chunks of land some almost equal to an entire district. A past survey showed that the families of Kenya’s two former Presidents, Kenyatta and Moi, owned land equivalent in size to the entire Nyanza Province. The issue of who between national Government and the community should own wildlife, game sanctuaries, land, forests, and water-catchment areas was another point of departure. The Maasai community living in Narok county council argued that an arrangement based on Wako draft would rob them any meaningful source of revenue once the famed Amboseli National Park was placed under the National Government. Currently, the park is under Olkejuando County Council and is said to be the richest council in Kenya (yet the poorest in terms of social-economic development).

Religious Courts

Both the Bomas and Wako drafts entrenched the Kadhi’s courts in the constitution. Its mandate, as proposed, is to determine questions of Islamic Law relating to personal status, marriage, divorce, inheritance and succession. However, the latter went further and proposed the creation of Christian, Hindu and “other religious” courts whose authority is on people professing the same faith on matters of personal status, marriage, divorce, inheritance, and succession. Though some churches like Catholics, Anglicans and Methodists among others, analysts argued, have a written theology and a confirmable body of canon law, many small denominations lacks such principles. The debate on Kadhi’s court became a matter of national debate prompting many Christians to vote against the proposed draft on the assumption that it was giving room for the introduction of sharia law in Muslim-dominated regions like Coast and North-Eastern province.

Just as yesterday, the four clauses remain the main bone of contention dividing the country down middle and unless they are effectively addressed in manner that satisfies the majority Kenyans, a new constitution dispensation could remain just a mere mirage.

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