Archive for March, 2010

So what is holding Kenya back from getting a new constitution?

“The current constitution that is governing us is not the one that we came up with from Lancaster. This one has been mutilated to suit the interests of rulers, the independence constitution embraced federalism and fair sharing of resources. The current mismanagement of resources and power were a creation of the late Mboya who, immediately after his appointment as constitutional affairs minister worked out a scheme to consolidate all the powers in the hands of the founding president, Jomo Kenyatta in 1967”
Martin Shikuku

It seems that for just about the entire existence of the enclave called Kenya, where the most cynical of leaders ride roughshod over the most optimistic of people, we have been using an illegitimate constitution if Mr. Shikuku is to be believed, which he should be seeing that he is somebody who actually attended the Lancaster do. Just when you’d think the decades old clamour for a new progressive constitution was finally about to bear fruit with consensus on a new draft seeming imminent, several interest groups have ultimately thrown a few spanner in the works by creating what, in Kenyan political parlance, have come to be referred to “contentious issues” and which this time have taken the form of a tag of war between the Committee of Experts (CoE), the Parliamentary Select Committee (PSC) and religious groupings. The issues holding back the march towards a new consensus include: A battle over the role and powers that a Senate would wield; a proposal by the CoE touching on judiciary reform; The guaranteed controversial matter of a Kadhi’s courts; A recall clause for MPs and the mother of all battles that is the pro-life versus pro-choice debate.
The senate is contentious, at least to those who sit in the air conditioned wood panelled august house, because the CoE proposes to give the senate more powers than the National Assembly in a move meant to check on a powerful presidency which the politicians have agreed on, but it isn’t one bit surprising that inane short-sighted thinking by parliamentarians, who forget that they will not be parliamentarians forever, has seen the PSC change the provisions of the document to ensure the proposed Senate has no real power and should serve no other purpose other than being a drain on our depleted coffers, this decision has irked the CoE who have ignored the MPs and changed back the clause on the Senate to reflect its original intent and now the PSC is plotting on deleting the offending clauses yet again.
The second bone of contention is a provision on the Judiciary, where the CoE yet again overturned a PSC amendment to a proposal on the vetting of all judges when the new document comes into place, MPs argued such a clause would cause panic in judicial circles and also felt that a clause had been sneaked in that called for resignation of the Chief Justice, a matter which had not been discussed or agreed on at any time in the past.
On the matter of the Kadhi courts, which last time round threatened to create Muslims versus Christians chasm and which led to Wako’s farcical solution of providing a court for every religion, the Christian religious leaders are back at it again opposing inclusion of it in a constitution, especially vocal are the charismatic and those that teach latter day gospels of prosperity and do not disapprove of ostentation represented by the likes of Hon. Dr. Margaret Wanjiru (Doctor of what is anybody’s guess, but I digress). The Muslims faithfull on the other hand are adamantly sticking to their guns with Muslim leaders pointing an accusing finger at church leaders whom they term insincere for refusing to accept that the Kadhi courts would protect Muslims’ religious rights which, according to them, are isolated by the current constitution and the draft as well since the two documents are based on British Common Law which is in turn a reflection of Judeo-Christian laws and traditions thus making Kenya a state that is “Christian” in nature. , Ibrahim Isaac, the secretary general of International Da’awah Resource Centre who expressed those sentiments has even picked on the tired clichéd rallying cry “No (Sharia) courts. No constitution”
Concerning the recall clause for MPs, the CoE has put up a brave fight in including what are the wishes of most Kenyans that MPs should live with the knowledge that if they are doing nothing more than filling the parliamentary quota of insipid men and women, who only open their eyelids on days they conspire to rob us blind, then they should have to be made to seek a new mandate. However all I can think of is that when this particular clause comes up for debate in parliament watching the parliamentarians “consensus” in quickly getting the two thirds majority votes that are required to amend the CoE draft will just be as good as watching 222 wolves and a sheep voting on what’s for dinner.
However the most heated debate on the Proposed Constitution has to do with clauses touching on abortion and right to life, the basic problem is the insistence of Churches, especially Catholics, that the new document MUST indicate that life starts with conception and ends with natural death, the church leader further see any other description as being little more than a subtle push towards legalising abortion. The CoE draft indicated that made abortion to be only permitted if, in the opinion of a trained health professional (itself ambiguous in that it can be argued a nurse or pharmacist is a trained health professional), there was need for emergency treatment, or the life or health of the mother was in danger, or if other written law/laws permit it. The CoE draft , in Article 25, had this clause “Every individual has the right to life”, The church leaders however threatened to ensure the entire document would be dead in the water unless a clause was introduced to define life as starting from conception, a move which could see Kenya join the likes of Uganda, Northern Mariana and Zambia in including anti-abortion clauses their constitutions, even worse the legality of using certain contraceptives, particularly IUDs and emergency contraceptives, could come into question as the mechanisms by which they act could become instances of interfering with life. The sensitivity of the issue of abortion has even managed to create another fissure in the coalition government with President Kibaki and Prime Minister Raila Odinga on opposite ends of the debate, while an outraged religious community has resorted to issuing threats of a call to their members to boycott a referendum on the document.

Ultimately debate on the constitution has taken the usual partisan route; President Kibaki wants concerns of churches over abortion to be addressed by MPs while Prime Minister Raila would prefer that the Proposed Constitution be adopted in the exact form it was received from CoE in. ODM, Raila’s party, too, has taken the position that no changes be made to the draft from the CoE tabled in Parliament while Kibaki’s PNU is insisting on several amendments such as changing number of counties from 47 to 50 and removal of a clause binding Kibaki to consult with Raila in making appointments during the transitional period between adoption of the new constitution and the next general elections.
This are heady times for political nuts and junkies in Kenya, we wait with bated breath for a document that promises right all the wrongs visited on Kenyans and create the elusive nirvana, or at least a little push in that general direction. We can only hope the “contentious issues” do not derail the push for a new document this time and I can only pray the band of conniving demagogues in our legislative chambers will get their hands out of the national till long enough to give us a new document, one based on the CoE draft and not one based on the need to pander to populism with an eye on election or based on religious dogma that should have no place in the constitution of a secular state or even worse an imposition of an alien document as happened after Lancaster.


Leave a comment