Constitution: Why the People are Supreme

THE CONSTITUTIONAL review process seems to be finally on track but, as anticipated, there are now two sets of processes, both purportedly aimed at rectifying the same wrongs and ensuring that Kenyans get their desired constitution. And true to Kenya's political culture, mistrust and cries of "hidden agenda" have become part and parcel of both processes.

The parliamentary select committee, chaired by National Development Party (NDP) chairman Raila Odinga, whose mandate was to review and rectify the Constitutional Review Commission (Amendment) Act, completed its work and had its recommendations adopted by parliament. The saddening thing was that the quorum for the debate was only about 100, comprising mostly of Kanu and NDP MPs, supported by KSC, Shirikisho and one Ford-Kenya MP. The only DP member present, Ms Martha Karua of Gichugu, voted against it; while the rest of the opposition boycotted the debate.

The major recommendation of the Raila committee was that the commission be composed of 21 instead of the previous 25 members stated in the original Act and that these be nominated by parliament, with the president appointing the commission's chairman and deputy. But ministers Nicholas Biwott and Chris Obure proposed that the commission be further trimmed to 15 members nominated by parliament. In view of this, President Moi's reported assertion that Kanu would use its numerical strength in the house to grab 11 of the proposed 15 seats for itself, while offering NDP two seats and leaving two to be shared out by the rest of the opposition, becomes positively ominous.

The new development effectively shuts out all other stakeholders in the reform process, giving the mandate for constitutional reform to parliament alone.

The Ufungamano Group, true to its promise, also formed its own version of the review commission and vowed to press ahead with its mandated task – that of constitutional review.

Readers will recall that the constitutional review process stalled when the various political parties failed to agree on how to first share out the 13 seats reserved for them on the review commission. Matters were not helped by the split in the Kenya Women's Political Caucus over the procedure used by the caucus's credentials committee to pick its nominees to the commission.

Prior to the 1992 election, both religious and civil society leaders had counselled opposition leaders not to rush into the election before the constitution had been reviewed to remove institutionalised tyranny. They paid no heed and lost the election, despite the combined support of over 64 per cent of the electorate. Thus humbled by electoral defeat, they finally joined the civil society and religious leaders in the agitation for a new constitution.

The first front turned out to be a struggle for the right to assemble without the permission of the provincial administration. For six months, the country teetered on the brink of chaos as the government refused to relent. Sadly, first to blink were the conservative and reactionary elements in the pro-reform front, who had come to regard their fellow agitators as extremists and arnarchists.

Thus it came to be that the moderates gathered and came up with the deal known as the Inter-Parties-Parliamentary Group (IPPG) agreement. That it was a sham is attested to by the fact that, to date, Kenyans cannot freely assemble. Even MPs are occasionally molested and assaulted for not informing police officers about their presence in their area of jurisdiction.

More significantly, the IPPG deal paved the way for Kanu's triumph in the 1997 general election.

So where did it all go wrong? Almost certainly at that critical moment in August 1997 when the IPPG was formed. Kenyans mistook Kanu's tactical retreat for surrender. They forgot the historical lesson that Martin Luther King spoke about in his defence of civil disobedience: "My friends, I must say to you that we have not made a single gain in civil rights without determined legal and non-violent pressure. History is the long and tragic story of the fact that privileged groups seldom give up their privileges voluntarily."

The flawed package of reforms failed to deliver on its promises. The flawed 1997 election and subsequent political events have proved that the constitutional stalemate is the direct outcome of the IPPG compromise. Now, the operative word in the constitutional reforms process is control – who is in control of the process? That is why it is hard to see Kanu accepting less than seven nominees to the Commission or DP less than three.

But no one seems to be asking what Kenyans need or what the Constitutional Review Act needs to function effectively. Trapped by their parochial interests, none of the parties has bothered to seek the views of the electorate or their own ordinary members. Indeed, the nominations from political parties were clearly made without any consultations with their respective constituencies, making it obvious that they could not be "people-driven".

The irony of the Review Act is that it does not meet the power anxieties and expectations of either the ruling party or the opposition. For Kanu, constitution-making is a device to retain power, while for the opposition it is a method of levelling the political field to guarantee their ascendancy to power.

Additionally, the Kenyan constitution has historically been a device to solve intricate problems of power, and for this reason it has been amended or repealed whenever the interests of the powerful have demanded it. It is not a contract between the governed and the governors, as the will of the people is subordinate to parliament's supremacy. It is at this point that the Parliamentary Select Committee and the Ufungamano Group come in, with the latter claiming to be favouring a people-driven reform process.

The major sticking point here is whether the process should be "parliament-driven" or "people-driven". The contention that the constitution should be reformed exclusively by parliament is not supported by democratic constitutional theory and is contrary to the provisions of the Constitution of Kenya.

The issues in the constitutional review debate have been further clouded and compounded by our own sad experience since independence, in which parliament alone has effected far-reaching amendments that have even changed the basic structure of the constitution.

The most virulent such exercise took place in 1982, when the basic republican and multi-party structure of the constitution was fundamentally altered by parliament and replaced by a one-party structure. In 1991, parliament again reverted the country to a multiparty state without involving the people directly. These bad precedents are being relied upon without appreciating that they were based on the faulty premise of the unlimited power of parliament to change the constitution in whatever manner and to whatever extent it wished.

Fundamental constitutional reform is a responsibility of the people themselves, not their representatives. The people of Kenya need to vote directly on a new constitution.

Those who argue for the reform of the constitution exclusively by parliament have hinged their case on Sections 30 and 47 of the constitution. Section 30 reads: "The legislative power of the republic shall rest in the parliament of Kenya, which shall consist of the President and the National Assembly." The flaw with this argument is however that it equates the process and substance of constitutional reform with that of ordinary legislation. All laws enacted by parliament in Kenya are Chapters in the Laws of Kenya; and the Constitution of Kenya is not such a chapter of the Laws of Kenya. Indeed, parliament is itself a creation of the constitution.

Section 47, part 2, provides that parliament "may alter this constitution." Lawyer Kathurima M'inoti avers that Blacks Law Dictionary defines the term "alter" as follows: "To make a change in; to vary in some degree...without substituting an entirely new thing or destroying the identity of the things affected..." This power is, therefore, not an open-ended power.

Hence, Kenyans must be clear about what they "need" from the constitutional reform process, and not what they "want". "Needs" focus on the most fundamental, the most critical aspects of existence and have a habit of bringing us together because they target our integrity. They are what a nation or a people cannot do without if they are to fulfil their lives as citizens.

There is no law that bars Kenyans from making their constitution, and they do not need that permission either, as they can ratify the constitution themselves. Kenyans should also recall that there have been constitution-making projects outside parliament: section 2A of the Kenyan Constitution was repealed at Kasarani, the minimal constitutional and legal reforms enacted after the IPPG deliberations were agreed upon at County Hall, whereas the Constitution of Kenya Review Act, 1997, was debated first at the Bomas of Kenya and later at the Safari Park Hotel. Indeed, Section 2A was repealed despite the Saitoti Commission's distorted report that Kenyans were happy with single-partyism.

The focus will have to be on the changes Kenya needs, such as the reduction of presidential powers, the strengthening of the bill of rights and so on. Once that is assured, it does not matter if the devil himself presides over the Constitution of Kenya Review Commission.

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