Roadmap towards Constitutional Reforms, Kenya

Presented to

· Madaraka Party of Kenya, www.madarakakenya.org

· Youth Anti-Corruption Movement

· Progressive Youth Leadership Assembly, www.kenya-pyla.org

· East African Regional Youth Network

· (EARYN)

· National Youth Political Advocacy Bureau

· National Youth Empowerment Council

· Youth Agenda for Peace & Development (Mombasa)

We are all here today, because of the misguided notion that we can fix our country's woes by changing governments, or presidents. We are here today, because of our hitherto national gullibility, whereby we hand over imperial, undemocratic, and autocratic powers to individuals, and then expect them to facilitate the reduction of those powers. In essence, we are here today, because of conducting elections under the old constitution, disregarding the realities that kick in after elections, and the self interest that ensues. We end up with the same governance arrangements, and trapped in an expensive vicious cycle of lip-service, opportunism and betrayal.

The new constitution was supposed to have been enacted within 100 days of the last elections. Reverend Mutava Musyimi witnessed the signing of that famous Memorandum of Understanding, on behalf of the people. We remember the President attesting to the fact that a sound constitutional framework is not only the basis for good governance, but of absolute necessity, particularly in light of our dark economic history. Various incidents spanning the last few years, must only serve to remind us of the urgent need, for a complete overhaul of our governing structures.

At this very moment, we are engrossed in massive financial scandals, including Goldenberg and Anglo Leasing. We have also witnessed the peddling of our national heritage, the unresolved Ouko and Delamere murder-cases, escalating crime, particularly sexual offences that go unpunished, and controversial investment ventures, such as the Tiomin mining project in Kwale and the Dominion farm in Yala Swamp etc. The latter, for instance, not only highlight the dire need to revise our Investment Code, but also prompt us to establish a suitable policy framework, to facilitate transparency and accountability.

Simply reviewing the Mining Bill will not suffice.

As the press effectively summed it: "If we had a constitutional framework that would insulate crucial national and governmental processes from the political nonsense, we would have the luxury of turning our backs on our clamouring politicians" (The circus and greed for power – Daily Nation, 9th April 2006). For the continued survival of our country as a peaceful and democratic state, Kenyans must not venture into another election without constitutional reform. The present constitution is a recipe for disaster. How can we talk about elections, when we do not even have the legal framework for transfer of power?

The results of a presidential election are only conclusive if there is a clear-cut winner. What happens, for example, when none of the contenders garners the required 25% of votes in five provinces, even after repeating the elections thrice? Do we start afresh, or do we bend the constitution to suit the whims of the moment? Of greater concern is the fact that the President can only stay in office at the mercy of Members of Parliament. Section 59 empowers Parliament to remove a popularly elected president from office, by a simple majority of votes. A president-elect without a majority in Parliament will be thrown out of office on the first day that Parliament sits.

Knowing how emotions run high during elections, why should we consciously risk such potential threat to national continuity? We need a very clear definition of the role of the President, and how the chief executive is elected. We need rules governing political party membership by Parliamentarians. We need to streamline laws governing coalition governments. And we need to devolve power to the people, so that they can start living like human beings in their own country, instead of being mere pawns in a chess game of the elite, being played by the elite, for the elite.

It is obvious that if Kenyans go to the next elections under the present constitution, then corruption and further erosion of democratic practices are going to continue, since the office of the presidency has immense power, which the occupant does not wish to relinquish. The East African Standard captured this perfectly in their editorial on March 11, 2006: "For as long as the current Constitution remains the supreme law of the land, the President will continue to wield huge executive powers. These include the power to hire and fire ministers, permanent secretaries, top security officers and others who occupy constitutional offices. This also includes the power to control the calendar of Parliament".

Today, the president is using his immense powers to take away the rights of association. There is a danger that the present government wants to curtail multiparty democracy and take us back to the dark pre-1991 days of one - party dictatorship. Kenyans, it seems, have lost their hard-fought right to form political parties. For example, only three political parties have been registered since the present administration took over: New-KANU, a splinter of the official opposition KANU; the Orange Democratic Movement Party, registered by persons not affiliated to the coalition that galvanized the NO vote in the referendum; and NARC-Kenya, the party under which President Kibaki is expected to seek re-election. All other parties seeking registration (including Madaraka Party), social movements, pressure groups, associations, and other organizations formed to address social issues, have been told one thing by the registrar of societies: "the government has put on hold the registration of any new organizations until further notice".

Kenyans are therefore supposed to proceed to the next elections only with those whom the government has approved of. Is this democracy?

CCR recognizes the Bomas Conference as the legitimate representation of the people of Kenya. In our opinion, therefore, there is no need for a constituent assembly or another review commission to oversee the enactment of the constitution. This very Committee of Eminent Persons can be expanded to render the process all-inclusive.

1. The first step entails three months of civic education, which can run from July 1 to September 20, 2006. The curriculum for this exercise should be people-driven, based on the principles of action-research and Paulo Freire’s Pedagogy of the Oppressed. The method used by the now defunct CKRC was based on the methodology that Freire called the "empty container" approach, whereby citizens were perceived as passive recipients of knowledge (empty containers) being filled by the "wise" civic educators. This method is not only contemptuous and insulting to the intelligence of the people, but renders hollow the claim that the constitutional reform process was people-driven. The process has to be participatory if it is to be educational at all. The educator must be ready to facilitate a discussion where citizens’ views on the draft are captured before any referendum questions are drafted.

2. CCR insists on consensus building as opposed to acrimony. Civic education should be conducted by sectoral groups as opposed to politicians / tribal groups.

3. CCR’s position is that the previous referendum should never have been a blanket YES / NO vote on the entire draft, but only on the contentious issues. The civic education process will therefore enable citizens to raise any contentious issues that they might have. Once these views are collated by November 1, 2006, a trend will emerge showing which issues are raising the most contention. Those issues will constitute the questions in the final national referendum on November 22, 2006, and the people will vote specifically on them. The final draft would then be taken to Parliament, and passed without debate by December 10, 2006. President Kibaki can present the new constitution to Kenyans by December 31, 2006.

In closing, we wish to thank this committee for granting us the opportunity to air our views. It is our most sincere hope, that the government will support the people in facilitating the vital conclusion to the review process. Last but certainly not least, we wish to urge all Kenyans everywhere to join hands in this worthy task.

Sincerely,

Wanyee Kinuthia Interim Coordinator,                                                   

International Secretariat Coalition for Constitutional Reform (CCR-Kenya)

Ottawa, Canada.

Chris Kiliko Musyoka

Interim National Coordinator Coalition for Constitutional Reform (CCR-Kenya);

Chairman, Madaraka Party of Kenya

Nairobi, Kenya

Tel: +254 734 603230.

Presented by Jared Buoga.

--- Friends of Kenya.