Queries over new constitution

The publication of two constitutional review Bills last Friday, has set the ball rolling on the final phase towards achieving a new constitution.

For more than two decades, the country has trudged on the journey towards a new constitutional dispensation with little success.

Justice and Constitutional Affairs Minister, Ms Martha Karua published the Constitution of Kenya (Amendment) Bill 2008 and the Constitution of Kenya Review Bill 2008.

The crucial Bills also effectively kick-start a countdown towards the dissolution of the experimental cohabitation between the Party of National Unity and the Orange Democratic Movement.

Section 8 of the National Accord and Reconciliation Act 2008, that contains the Principles of Partnership of the Coalition Government states: "The Act shall cease to apply upon dissolution of Parliament, if the coalition is dissolved, or a new constitution is enacted, whichever is earlier."

This raises the question of whether the Grand Coalition Cabinet would be in a hurry to expedite the process of delivering a new constitution, which would mean speeding up their exit from power and the perks that go with it.

Should a new constitution be enacted tomorrow, the Grand Coalition Government ceases to exist and new elections should be conducted according to the pact signed by President Kibaki and Prime Minister Raila Odinga on February 28.

Therefore, while the publication of the two Bills officially kick-start the review, it is doubtful whether the Government would be willing to beat its own 12 months deadline to deliver a new constitution.

So where does the 12 month countdown begin?

The closest a member of the Grand Coalition Cabinet came to revealing the commencement date was when Agriculture Minister William Ruto, said last week that it should start with the publication of the Bills, which would it make June 20.

On April 17, when the Coalition Cabinet was sworn-in President Kibaki said a new constitution could be delivered within 12 months.

The President even joked that Lands and Settlement Minister, Mr James Orengo, a lawyer, could easily comb over the Bomas Draft and sort out the contentious clauses.

Former Law Society of Kenya chairman and Kabete MP, Mr Paul Muite, says the countdown should start on February 28, when the National Accord was signed between the President and Prime Minister.

"This is the time they committed to work together and the beginning of their joint coalition agenda. Personally, I think the 12 months timeline is too ambitious and unrealistic," he says.

And despite all the promises, the reform agenda and the constitutional review seem to be sliding down the Cabinet’s priority list.

There is even discernible lack of enthusiasm among ODM and PNU partners.

The timing of the review is jumbled up with the Kriegler Committee investigating the conduct of last year’s General Election and the Justice Waki Commission, inquiring into post-election violence.

There is also the anticipated Truth, Justice and Reconciliation Commission (TJRC). The legislating Bill was published a few weeks ago.

This puts the review in danger of being crowded out of public attention.

A joint coalition manifesto, drawn up by the National Accord Implementation Committee chaired by ministers Prof George Saitoti and Prof Anyang’ Nyong’o, and which was recently leaked to the media, also promises to deliver a new constitution within "a year".

The document is yet to be officially launched.

The Constitution of Kenya Review Bill 2008 proposes creation of various organs, among them a committee of experts, all which are likely to take time to establish and recruit staff.

The civil society has in the past proposed a representative Constituent Assembly to replace the Parliament Select Committee (as Karua proposes) to draft a constitution.

Bridging these positions will also take considerable time.

Last week, Finance Minister, Mr Amos Kimunya raised eyebrows when he did not allocate funds for the constitutional review and for the enforcement of the Political Parties Act, in the 2008-2009 Budget.

The omission suggested that the Government might have knocked off the two items from its list of priorities.

However, Karua has since explained that the review would be funded from special accounts and a referendum would be provided for in the Budget next year.

Among other things, the Political Parties Act, which is already law, provides for establishment of a Political Parties Fund, which is to be financed from the Budget.

However, on access to the funds, the law imposes unprecedented strict discipline on the parties, which have largely been amorphous.

For instance, the law that comes into operation on July 1 puts political parties under an independent office of Registrar of Political Parties housed by the Electoral Commission of Kenya. This de-links the parties from the current registrar of societies.

Politicians and their parties will, for the first time, also be required to account for their campaign financing and file annual returns.

Consequently, Nairobi lawyer and human rights activist Haroun Ndubi says the Grand Coalition was no longer enthusiastic about constitutional review.

He says the putting together of "reform-like initiatives" could be deliberate.

"A lot of ground has been covered in the Bomas Draft and it is possible to deliver a new constitution within 12 to 18 months. However, this requires political goodwill, which seem to be running low. The Political leadership lacks sufficient conviction on the enormity of need for reforms. It is evident from their muted voices on reforms," he says.

He says the political elite has realised the criminal, moral and legal monster that entails confronting historical and political injustices, and were no longer interested in pushing for reforms.

He adds: "That is why they are creating commissions as garbage heaps to dump touchy issues they would rather not deal with, hoping they will go away or dissipate. They are worried about the results of the commissions and personal political and moral responsibilities they would have to face."