KENYA: Swirling Constitution undercurrents

Last year President Kibaki promised Kenyans a new constitution by June 30, 2004. The draft has been completed and passed but the issue has opened deep fissures within the ruling coalition. There is talk of a public referendum. Alnoor Amlani provides the details.

On the surface, it was all sweetness and light when, on March 15, the longstanding National Constitutional Conference (NCC) talks finally ended successfully with the completion and publication of a draft constitution. This concluded the people-driven drafting process initiated in the 1990s and places the new NARC government firmly back in charge of the process. Underneath the surface however, strong undercurrents have been stirring.

During the 2002 elections, many opposition leaders who vehemently championed the cause for a new constitution were successfully elected into government. In a miscalculated move however, some of these government leaders threatened to block the draft - and as a result plunged the country into a fresh constitutional crisis.

A revealing event of high drama, courtesy of a group of cabinet ministers and MPs in the closing moments of the conference, symbolised the crisis. The final debate on executive power was marred by a vocal protest and walkout. Some of the most senior ministers of the coalition government and a group of MPs in attendance protested that the proposals made by a consensus building group's talks in the final weeks of the conference were not debated, amended and adopted by the NCC, and then walked out in protest.

The NCC delegates then checked if they had the required quorum (minus the ministers and MPs) and calmly proceeded to pass all the contentious clauses, thereby completing their work earlier than anticipated.

Terming the draft constitution a "negotiated instrument", NCC chairman Yash Pal Ghai revealed his frustration with some review commissioners, namely the Minister of justice and Constitutional Affairs, Kiraitu Murungi, and the chairman of the Parliamentary Select Committee, Paul Muite. He also revealed his two previous attempts to resign were rejected first by former-President Moi and then by President Kibaki.

POWER STRUGGLE

The hostility between delegates stems from a dispute over political boundaries and power sharing. One issue is whether to retain the presidential form of government or to adopt a parliamentary system similar to the French and Indonesian governments. The NCC voted for the parliamentary system, which includes an executive prime minister who will be appointed by the elected president (who will not have day-to-day executive power).

A significant faction of the NARC government disagrees with this. Some analysts have argued that this is an inevitable result of coalition politics and heralds the beginning of a new power struggle within the ruling coalition.

President Kibaki's government has organised further consensusbuilding talks in Mombasa. He has meanwhile appealed to the country to focus on national unity and nation-building in peace. Parliament has firmly moved to take over the process by publishing two bills that pave the way for it to make changes to the draft constitution.

But a group of NCC delegates has already moved to the High Court and received a contentious (some say ludicrous) ruling that declares that the entire constitution conference (including thousands of man-hours and $65m of Kenyan and donor funds) to be unconstitutional! The court also directed that the draft must be subjected to a national referendum to achieve true consensus.

A REFERENDUM IS LIKELY

Many fear that the referendum process lays the draft open to manipulation. Ghai has termed the court rulings as "weakly reasoned, misapplied and a tragedy". Strong words indeed.

He argues that referenda can be manipulated to undermine the rights of minorities and undo the carefully crafted consensus achieved thus far. But a motion has already been moved in parliament for a simple 'yes' or 'no' vote for the referendum and many parliamentarians from both the government and the opposition have indicated their support for a referendum.

Kenyans have only recently gone through a general election and unless the process is renegotiated outside parliament, it seems likely that just two years later they will soon be forced to re-engage themselves in a costly and time-consuming national referendum to decide the matter. Ghai has asked for a fair process that avoids splitting hairs over specific clauses and instead calls for the electorate to simply accept or reject the entire document.

The media has also published the entire text of the draft and civil society has initiated open forums to publicly debate the issues and ensure Kenyans are able to make informed decisions over the complex structural and regulatory provisions that make up the document.

PROVISIONS OF THE DRAFT

The opening sections declare the constitution to be "the supreme law of the Republic" with authority over all law making bodies including the High Court. It states that "a law that is inconsistent with this constitution is void to the extent of the inconsistency and any action or omission in contravention of this constitution is invalid".