Committee set up to revive stalled law review talks

By ALex Ndegwa

In 1999, President Moi, during a tour of Europe, granted a rare interview to the British Broadcasting Corporation, in which he expressed the wish to invite foreign experts to resolve Kenya’s constitutional impasse.

Moi had first broached the idea in 1996 when the movement to change the constitution was beginning to gather steam. At a time the rallying cry was a "people-driven" constitution, Moi had casually remarked "Wanjiku" should not be burdened with the daunting task of rewriting the document.

He never got to fly in the foreign experts and Kanu was routed out from power in December 2002. Riding on a popular wave of change, the new Narc administration flagged off a "people-driven" review process but it was followed by the Bomas fiasco and ultimately, the 2005 referendum debacle.

Nearly two decades since the clamour for constitutional change began in the early 90s, the country is still groping in the dark, with broken promises littering the long torturous unwinding path to freedom and no end seemingly in sight in the search for the elusive document.

A development this week seemed to vindicate Moi’s controversial call almost a decade ago. Negotiators at the UN-mediated Serena talks have proposed a committee of experts to spearhead fresh efforts to give Kenya a new Constitution in one year. Things now have come full circle.

According to the proposed ‘roadmap’ to a new constitution leaked to the media on Tuesday, members of the National Dialogue and Reconciliation teams have agreed on a seven-member committee to revive the stalled process.

Parliament and the Panel of Eminent African Persons who helped negotiate an end to the post-election violence will pick the team. Four of the committee members will be recruited by Parliament based on their expertise while the Kofi Annan-led eminent team will name three, according to a document prepared by Justice minister Martha Karua.

The team shall be experts in comparative constitutional law, systems and structures of democratic governments, land and land law, electoral systems and designs for democratic elections, anthropology, governance, ethics and public finance.

A proposal for a Constituent Assembly is likely to be dropped because of fears that the route may cause further unnecessary delays in budgetary constraints, endless debate and fierce feuding reminiscent of the Bomas meetings.

The proposed roadmap to a new constitution injects fresh impetus into the sluggish campaign. The Grand Coalition Government promised to deliver the all-important document within 12 months, and already, nearly half the year is over.

Aware that time is running out, the Serena group proposes that the team of experts be mandated to identify and separate issues on the Bomas draft that are not contentious and those that remain hotly disputed.

The Bomas and Wako drafts will act as reference documents for the exercise although other useful materials will be consulted.

According to the proposed plan, issues on which the PNU and ODM coalition agree will be put to the vote in a referendum in one batch for adoption or rejection.

Those on which the two sides do not agree will be presented to the voters separately, with the two positions spelt out for the voters to decide which side wins.

The side with the highest number of votes will be deemed to have carried the day, according to the draft prepared by the team of mediators meeting under the chairmanship of Nigerian diplomat, Prof Oluyemi Adeniji.

Members of the team are Deputy Prime Minister Musalia Mudavadi, Karua and her fellow Cabinet ministers Mutula Kilonzo, Moses Wetang’ula, William Ruto and James Orengo.

The issues that were listed as contentious include whether Kenya should remain a presidential system or adopt a parliamentary system where the PM will have overall executive authority.

Other disputed issues are devolution of power, affirmative action, land, property and religious courts. The proposal to haul the country out of the constitutional labyrinth has raised hopes that the negotiators have not slept on the job with regard to Agenda Four, especially after the setback occasioned by the recent diplomat spat.

Mr Abdikadir Mohammed, the chairman of the Parliamentary Committee on Administration of Justice and Legal Affairs, says they are happy that both sides are agreed on the urgency of the matter.

Abdikadir told The Saturday Standard, that Karua will take committee members through the proposed roadmap at length, show how it will cultivate consultations and respond to concerns by interest groups particularly the Law Society of Kenya, who feel left out. Instructively, LSK chairman, Mr Okong’o Omogeni, met the committee last Thursday.

"This process has taken far too long. It has been debated at length and gobbled so much money that we should not waste any more time. The committee is happy about the work done so far but we must make sure we get the process right this time round," says Abdikadir, the Mandera Central MP.

His predecessor at the committee, Mr Paul Muite, says non-contentious issues should be enacted alongside the constitutional amendments mandatory to entrench the review and the referendum in the constitution.

According to Muite, reforms to grant Parliament autonomy to run its own calendar, overhaul the electoral regime including reconstituting the Electoral Commission, independence of the Judiciary and dual citizenship are non-contentious.

Parliament unsuccessfully tried to wrest control from the President four years ago through the Constitution of Kenya (Amendment) Bill, 2004 sponsored by Belgut MP, Mr Charles Keter. The Bill, which sought to put Parliament’s calendar under the control of the House, failed to see the light of day. Abdikadir, whose committee keeps watch over ECK, Judiciary and police, agrees these institutions need urgent reforms and no time should be wasted.

Muite, argues that these piecemeal amendments should be supported since they are urgent and fundamental to offer an interim fall-back position in case comprehensive review faces hurdles.

"While it is motivating to say a new constitution will be in place within a year, with June around the corner, is unduly optimistic. These are issues that cannot wait and should be enacted concurrently with comprehensive reforms," says the former Kabete MP.

His argument is that over the years, the country has witnessed a series of amendments that have improved the constitutional climate without requiring referendums. He cites the repeal of Section 2a in 1991 to allow multi-party politics and recently the introduction of a coalition Government.

Muite says it is in the interest of Kenyans to bring in a few more renovations to the constitutional facade even as "the wait for the fabled new constitution goes on".

In particular, Muite says implementation of new electoral laws and reform of the ECK should be speeded up since "you never know elections could happen any time with a fledgling coalition."

That ECK is accused of bungling last year’s elections that led to the killing of 1,500 people and the displacement of over 500,000 is the more reason reforms targeting the institution should not be delayed.

Muite says controversial issues like land, devolution and the system of governance require some time to fix and "constitution making requires consensus for which you cannot fix timelines."

The team of experts, which takes over from the defunct Constitution of Kenya Review Commission (CKRC), will play a crucial role to thrash out the contentious issues.

Besides flagging the thorny areas, the team is expected to solicit and receive from the public written memorandums on these divisive and emotive issues that caused the rejection of the Government-sponsored draft at the last referendum.

The constitution experts will then be expected to prepare a draft constitution with all the issues that are not contentious and the contentious ones clearly marked with accompanying notes explaining the merits and demerits of each options and recommendations.

They will then be expected to present this draft to the Parliamentary Select Committee on Constitutional Review, with a request that the committee deliberate and achieve consensus on the contentious issues in view of the recommendations by experts.

They proposed that this Parliamentary Select Committee should be constituted as soon as Parliament reconvenes on June 10. This committee will be expected to steer the enactment of the Constitution of Kenya (Review) Bill 2008 and the Constitution of Kenya (Amendment) Bill, 2008.

Karua last Monday hinted that members of the law reform commission were in the final stages of drafting a Constitutional Bill, which will be tabled in Parliament next month for debate.

Following the results of the referendum, the team of experts will finalise the draft constitution and present the same to the Attorney-General for publication and laying before the National Assembly.

Upon expiry of seven days, the new constitution shall be deemed to have been promulgated by Parliament. But it will remain to be seen whether the ghost for the search of a new and democratic constitution that stirred the 90s will be laid to rest.

What is certain is that the country will be saved the theatrics and fiasco that characterised the Bomas conference that generated plenty of heat but no light.