Comprehensive Christian Position on Wako's Mongrel

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KENYA'S NEW CONSTITUTION

A CHRISTIAN CALL TO POSTPONE THE PROCESS OR
VOTE NO DURING THE NOVEMBER 2005 REFERENDUM

COMPILED BY REUBEN KIGAME
DIRECTOR, WORD OF TRUTH MINISTRIES

P.O. Box 3608, ELDORET, KENYA. 30100
Tel. [phone]
Cell: 0733-976109
www.wtmkenya.org

ACKNOWLEDGEMENTS

We offer our gratitude for the contribution made by the following persons in the discussions leading to the position shared in this document:

Cornelius Litunda, Karen Njagi and Gad Kipkirui for their legal contribution, Dr. Patrick Oyaro for his medical perspectives, Angela Omobe, Jackie Ndambuki, Esther Gakii and Benson Bosire for their participation in the discussions, Mercy Kigame for secretarial help and Ronald Omwitsa for the technical assistance with audio recording. Special thanks also go to to Mr. Litunda for the assistance with the actual preparation of the document, Sammy Kere for assistance with proof-reading and Mr. Bosire for his help with layout. We cannot leave out of mention the kindness of the WTM Advisory Board for the willingness to read through and critique the document.

Above all we thank the Lord Jesus Christ for the grace, strength and communion during the entire process. All glory goes to Him and Him alone.


INTRODUCTION

We offer this presentation to every Church leader and everyone interested in the advancement of a carefully-thought out position on the upcoming November Referendum. We admit that better studies may exist to advance the Christian position in this matter, but, compelled by love for the Church and the Gospel of Christ, we offer this document to those who may not have a chance to fully interact with the Draft Bill and to those who have, but find themselves in a position of indecision. We may not be perfect in our analysis, but we have faith in the only perfect God and His perfect Word. With the realization that we can make mistakes, we open wide the doors of dialogue on any of the points raised in this document. We are also ready, upon invitation, to discuss the document in any forum as the Lord permits.


Why A Christian Position?

We at Word of Truth Ministries have undertaken the exercise of reading through and reviewing the Draft Constitution with the desire to provide guidance for the Church through the statement of what we consider a Christian position on the same. A Christian position on the Draft is necessary because:

(a) As salt and light we are expected to provide direction where there is darkness and confusion. (Matthew 5:13-16)
(b) We are called to be peacemakers in a world of chaos. (Matthew 5:9)
(c) There is need for a society guided by righteousness, justice and equality for all. God is just and promises to reward those who thirst after righteousness. He says they shall be filled. (Matthew 5:6)
(d) Whenever there is danger to the flock of God, it is expected that those who see the danger should warn the flock accordingly. Leaders in the body of Christ are to serve as watchmen to the flock in this regard. Ezekiel 3:17 says: "Son of man, I have made you a watchman for the house of Israel; so hear the word I speak and give them warning from me.¡¨ If there are any contentious issues in a document such as the Wako Draft, therefore, the flock of Christ must be warned about them.
(e) More than 80 per cent of Kenya¡¦s population professes or aligns itself with the Christian faith. These need to be guided so that they can clearly understand how the endorsement or rejection of the Draft is bound to affect their faith and daily life. They need to know that they have a democratic right to have their position considered as the majority in Kenya;
(f) Many Christians, including leaders, have tended to make public statements or asked Christian faithfuls to vote in a particular way come the Referendum, but are not acquainted with the issues in the Draft for the reason that they have not read nor studied it;
(g) Some Christian leaders who say they have read the Draft and even held consultations with specialists have ended up telling Christians to vote with their conscience, but at the same time added that the Draft is a better Constitution than the current one. We
argue here that both positions betray the biblical expectation for Church leadership (Ezekiel 34) by surrendering the flock to the mercy of the Drafters and civic educators, some of whom do not share our faith at all.
(h) Every Christian should be encouraged to take sides with God¡¦s Word and work, and not follow mere majority opinion. The Bible admonishes that God¡¦s people should not follow the multitude to do evil.(Exodus 23:2).

Should Christians Vote?

Yes, they should because:
(a) Whenever necessary, God has permitted people to do so (Jonah 1:7 and Acts 1:23-26)

(b) Whenever voting involves something that may affect Christians in any way, not to vote for the Christian position implies Christians accept the contrary position. Not to vote at all automatically gives the non-Christian side the upper hand; hence they should vote for what is in harmony with their faith.

Some positive things in the draft

Although many clauses in the Draft may need rephrasing, the current Draft can be praised for:

1. Defending the rights of children born in Kenya, the rights of women, prisoners, people with disabilities, etc.
2. Providing fair legislation on land, the environment and the protection of national resources.
3. Enhancing national pride and the virtues of hard work.
4. Providing elaborate mechanisms for managing the civil service and the financial institutions of Kenya.
5. Providing reasonable access to courts for those who cannot afford

How WTM Arrived At The Postpone/No Position

Our stand on the Draft is that, in view of the many contentious issues in the Draft that are in conflict with the Church of Christ, the government of Kenya should postpone the Referendum to allow for these issues to be satisfactorily dealt with or WTM will encourage everyone who calls himself/herself a Christian to vote ¡§No¡¨ in the November Referendum.

As a ministry, we decided to suspend judgment until we had read through, understood and interpreted the Draft. We were dissatisfied with the confusion emanating from the utterances of politicians and the ambivalent advice of Church leaders. We felt that it was not godly to tell the millions of Christians to vote a certain way without telling them why, or telling them to read the Draft and make up their minds because:

I. The Draft is quite big ¡V beyond the ability of the average Christian to finish reading independently;
II. There is very little time between the publication of the Draft Bill and the Referendum to allow a careful reading and interpretation of the current Constitution and the Draft by the common Mwananchi;
III. The language used in the Draft is quite technical, way beyond the average Christian¡¦s ability to understand. This is partly why the government has decided to print a simplified version;
IV. It is unfair to ask the illiterate Christian to read such a document and vote according to conscience;
V. It is near impossible to read such a big document to somebody else even on a voluntary basis due to size and time required;
VI. It is not enough to read the Draft; it needs to be interpreted.
VII. The Draft is not readily available to the visually handicapped and sign-language Christians. The government, by the time we finished reviewing the Draft, had not put it into Braille and had promised only one hundred and twenty copies by the next week. There are thousands of these who profess the Christian faith or are sympathetic to it who will not get a chance to interact with the issues in the Draft.
VIII. It is not possible to depend on individual pastors to read and guide their faithfuls on the Draft because many of them may not be able to read, let alone interpret it.

For this reason, we decided to contribute to the process by:

(a) Encouraging our staff and friends to read through the entire Draft;
(b) Inviting two legal experts to discuss the entire Draft for four days, paying attention to the sections that affect the Christian in particular and the Kenyan in general. These sat with seven other persons including teachers, a Christian apologist, a medical doctor, a youth leader and an administrator.
(c) Receiving a written contribution from an interested legal expert who could not be with us during the four days of discussion but who shared our concerns.
(d) Praying through the process of reading and interpreting the Clauses;
(e) Presenting our findings to the WTM Advisory Board.

We, therefore, request you to read through our position below and, as much as possible, check it out against the Draft and the current Constitution, then test the spirit of our conclusions against the Bible. It is with humility and deep concern for the course of Christ that we share these findings with you.


1. The Problem with voting ¡§Yes¡¨ or ¡§No¡¨We consider it unfair to ask any Kenyan in general and any Christian in particular to simply vote ¡§yes¡¨ or ¡§no¡¨ on the entire Draft Constitution because:

(a) Voting ¡§Yes¡¨ implies that you have read, internalised and accepted the Draft as is written or do not mind if it became the official Constitution of the country, and thus agree that it shall have a binding force on you; if it has any mistakes, they are minimal and can be lived with or corrected some day;
(b) Voting ¡§no¡¨ implies that you do not accept the Draft as is written and that unless it is perfected, it should not be adopted as the Constitution. The mistakes in it are hard to correct given the difficulty of doing so as provided for in the Draft. These are serious choices and we consider it unfair to simply vote ¡§yes¡¨ or ¡§no¡¨ on an entire document come November 21 and remain guiltless about the process.
(c) Although there is a middle position, it is not an option during the Referendum. The middle position is: If the contentious issues in the Draft were dealt with, it would be possible to vote on the Draft.
(d) In view of the missing option, if anyone has to vote on the Draft, he/she will need to look beyond the euphoria of merely having a new constitution. One has to look at the consequences of voting ¡§yes¡¨ or ¡§no¡¨. So, why persuade the Church to vote ¡§no¡¨? For the reason that the ¡§no¡¨ vote gives us a chance to address the contentious issues in the future. The ¡§yes¡¨ vote assumes that we are ok with the contentious issues. We are not. We are thus concerned and share the consequences through our findings in this document and persuade the Christian that it is better to vote ¡§no¡¨ because no Christian should accept the scheming to undermine his/her faith or be subject to legislation that undermines God and the Bible. We will also demonstrate in this document how, once the Draft is passed, it is near impossible to effect any changes on it. We will show how this is the intention of the Drafters.

We must, however, make it clear here that, although as a ministry and as the Church we find ourselves leaning towards the ¡§no¡¨ position in the event that the issues are not addressed, our ¡§no¡¨ is not inspired by the ongoing political campaign propaganda. It is based on three things

(a) A conscience informed by the Bible;
(b) The reading of the Draft and comparing it with the current Constitution, and
(c) Patriotic zeal and the love of our fellow citizens.

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2. The Problem Of Voting On The Current Draft Alone
There are certain aspects of this process that are not readily observable by the average Kenyan, even by those who read the Draft:

a) In order to replace the current Constitution, we are being asked to choose between the current Draft and itself; in other words, the current Draft and nothing else.
b) The original spirit of having a new Constitution in Kenya was that if there was no consensus at Bomas, then a national Referendum would be held on the contentious issues;
c) Instead of voting on the contentious issues disagreed upon at Bomas, the government walked out on Bomas, and reverted the process to parliament which through the Naivasha, the Nanyuki and the Kilifi consensus meetings formulated a new Draft altogether (the Kilifi Accord), and hence the current Wako Bill.
d) We are, therefore, being asked to say ¡§yes¡¨ or ¡§no¡¨ to an entire document formulated away from the representation at Bomas.
e) It would, therefore, have been better to table both the Bomas and current Drafts before Kenyans and allow them to choose between the two in the absence of the process of voting on the contentious issues.
f) To vote ¡§yes¡¨ implies we accept the Draft as it is - despite the difficulty in amending it - and accept it to start governing us from 12th December 2005. To vote ¡§no¡¨ means that the current Constitution continues to guide us as a nation. We reiterate here that it would be better to stay with the current Constitution in the event that the government is unwilling to defer the Referendum, and that the only way to keep the present one is to vote ¡§no¡¨ in the Referendum.
g) There have also been court proceedings fighting for the government¡¦s admission that the entire process was flawed from start. Presbyterian clergyman, Timothy Njoya, even presented a petition barring the Attorney General from receiving the Bomas Draft. With such uncertainties, it must be observed that the current Draft may face more challenges in future than can currently be anticipated, having been clouded by euphoria over the ongoing process.
h) Yet we cannot be entirely critical of the government¡¦s walk-out on Bomas. Nobody just walks out of a major conference. There must have been dissatisfied delegates at Bomas. We can, therefore, not vote ¡§yes¡¨ and ¡§no¡¨ to the Bomas Draft alone and neither should we really do so for the current Draft, being the product of a dissatisfied government. The way forward remains halting the process or else just keeping the status quo.


3. Every Citizen Ought To Cast A ¡§No¡¨ Vote
The appeal to cast a ¡§no¡¨ vote is made, not just for Christians alone, but anybody who desires true liberty, fairness, equality, justice and good governance. The Draft Constitution does not fully take care of the future generations. It does not take seriously the question of the representation of persons with disability; no matter what faith they hold. There is no balance on the question of the representation of women. By granting traditional religions and Islam certain freedoms, women are bound to suffer. There is legislation to strengthen the making of local brews we have been fighting so hard to eradicate, and, there is bound to be unending suits on matters such as freedom of dress and expression. Eight-year-olds found within our borders and who, surprisingly, do not know their origin, will be presumed to be Kenyan citizens by birth! We must ask who proposed this and why. Customs such as wife inheritance in an era of HIV and AIDS, FGM, etc could easily be defended by certain provisions. This is also a Draft that will clearly defend the rights of endangered indigenous crops but frowns on protecting the unborn child¡¦s right to life - by making abortion legal! Unlike the historical desire to trim the powers of the presidency, the opposite is the case and the presidential office is without age limitation. These and several other issues will be amplified below. For this reason, you do not have to be a Christian to be persuaded of the necessity to vote ¡§no¡¨ come November 21.

That there is dissatisfaction with the Draft in many sectors of our society is not fable.
Already the Muslim community feels the current Draft does not take care of Muslim interests either. Chief Kadhi, Sheikh Hammad Kassim, has been quoted as saying: ¡§Most of the issues in the Bill are not realistic and were never discussed by anyone except those who prepared the Bill.¡¨ Another Muslim cleric, Sheikh Mohammed Idris, was quoted by the same paper saying, ¡§Christians and Hindus had not called for religious courts, ¡K why give out what was never asked?¡¨ (Daily Nation, August 25, 2005, pg.5)

Let us also mention that even those pushing for a ¡§yes¡¨ vote on the Draft keep declaring that it is not a perfect document. While some put the perfection at 90 per cent, others put it at 80, 75 and some as low as 70 per cent. Whatever the case, almost everybody is agreed that there is something wrong with the Draft. Adopting the Draft with all its faults reminds me of the American launch of the spaceship, Challenger, in 1986. 73 seconds after take-off, the spaceship exploded and landed in the ocean, killing all on board. Despite the warning from NASA scientists that the mission should not commence until a faulty seal next to the fuel tank was rectified, it was insisted that the mission proceed. Neglecting the scientists¡¦ warning that something was wrong is what cost America that great investment and lives. We must not do the same with the launch of Kenya¡¦s new Constitution!


4. The Problem With The Proposed Civic Education

Regarding civic education, there are at least three problems:

a) Several of those the government has sent out to conduct the education have tended to lean towards defending the Draft, arguing that the document is flawless and should be adopted. Thus, instead of simply interpreting the Draft for the people, they add the qualification that it is a better document than the current Constitution. Hence the process is not fair. It defends the Draft.

b) Even before the government had officially launched the civic education programme, politicians had already began going around the country convincing the public to vote a certain way, most of them without explaining anything from the Draft. Some decided to employ outright propaganda by reducing the Referendum to personalities. Consequently, they have told people if they vote ¡§yes¡¨ they are pro-Kibaki and if they vote ¡§no¡¨ they are pro-Raila. Sometimes they have reduced the battle lines to NARC versus LDP/KANU, or simply brought in tribalism. This is dangerous and is not equal to civic education, even though they claim they are doing civic education. Any civic education without a focus on the issues in the Draft is not worth the name and is not appropriate. In the same way, any political campaigning that does not focus on the Draft clauses is nothing but dangerous propaganda.

c) The Election Commission of Kenya has admitted publicly that it is impossible to conduct fair civic education with political campaigns fully underway. ECK Chairman, Mr. Samuel Kivuitu, was quoted in one of the dailies as saying: ¡§There is no way the civic education providers can be effective if their civic education programmes are carried simultaneously with the campaigns for either side of the question.¡¨ (Daily Nation, Thursday, September 15, 2005, pg.4). Many have admitted that there is also not sufficient time for a fair civic education to be conducted. Such an education would require that a thorough comparison be made between the current governing Constitution and the Draft Constitution. It would have been fairer to even include the Bomas Draft in the education process, but it is almost obvious that this will not be done. This leaves the Christian educators only with the option of preparing Christians sufficiently on matters that concern them in the Wako Draft for the reason that they have to vote on it. This is one of the reasons for putting out this document.


5. The Question Of Full Participation

The Draft says in the Preamble:

¡§We the people of Kenya ¡K EXERCISING our sovereign and inalienable right to determine the form of governance of our country and having participated fully in the making of this Constitution: ¡K¡¨

If by ¡§full participation¡¨ is meant the process of having gathered views from different citizens, then one can only speak of a partial participation since many views were ignored and, most significantly, even at the point these collected views were being discussed at Bomas, the government decided to walk out on the process. It then started a totally different process leading to the current Draft. Given the considerable difference between the current Draft and the Ghai and Bomas Drafts, Kenyans cannot be said to have fully participated. It can also be noted here that a lot of people were already feeling disenfranchised even by the nature of the Bomas representation. Besides, the parliament is such a small representation to have worked on the current Draft and then call the process ¡§full participation.¡¨

In addition, many a church leader has come out in public and declared that the views of the Church on various matters were outrightly ignored. For instance, having insisted again and again that religion and state be completely separated for fairness, the current Draft goes even further by providing for ¡§Christian courts¡¨ in Article 195, something Christians did not push for and something they are against. We cannot forget the outcry against the CKRC that instead of listening to, collecting and utilizing, the views of Kenyans, they did a bad job and then sat down to compile their report by bringing in the constitutions of other countries in the name of expertise. True, we cannot fully satisfy everyone in the Constitution, but we cannot afford to ignore contentious issues raised by the majority in a democratic society and then speak of full participation. Let us add here that, merely voting ¡§yes¡¨ or ¡§no¡¨ does not amount to full participation.

6. The Lack Of Sufficient Goodwill Towards Posterity

The second-last paragraph of the Preamble states that we the people of Kenya ¡§ADOPT, ENACT and give this Constitution to ourselves and to our future generations.¡¨

There is a sense in which this is not a Constitution made with the future generations in mind. Although there is a lot of good legislation on education and protection of children, it is our conviction that a lot of selfishness under-girds the current Draft. There is the apparent feeling that the drafters are flawless in their procedures. Almost throughout, focus is made on those living now. The unborn are not given any explicit protection, and the Draft is made near impossible to amend. For the latter, it has been made extremely hard for posterity to change any oppressive legislation or those that may not be in keeping with their way of life then. It is assumed that the current generation cannot be wrong about the future. Subsequently, difficulties have been erected to frustrate amending the Constitution.


7. The Pluralistic And Deistic Foundation Of The Draft

Every Christian needs to understand that not every mention of God always refers to the God of the Bible. Certainly, this Draft does not intend to make reference to any specific God for the fear of offending certain groups. The Bill of Rights in the Draft is very specific in its prohibitions against offending another person¡¦s religious convictions. Article 48 ensures that no one religion has the pre-eminence. Religious pluralism is thus envisaged. However, there is a system of belief that is called Deism. It teaches that there is a God who created the world, but retreated and is not in control of it. He has left it to people to control it. A close look at the usage of ¡§God¡¨ in the Draft tends more towards this sort of deity than the pluralistic concept taught by many today. Such Deism intends to acknowledge that there is a god somewhere, but that we do not really need him to govern us. Humanism is also comfortable with such Deism. Hence, no Christian should be content with the thought that the ¡§God¡¨ referred to in the Preamble is the God of the Bible. Of course, given a choice, the more than 80 percent of Christians and those who are aligned to Christianity would prefer a nation where the God of the Bible was the highest lawgiver. Since many insist that they do not want the God of the Bible to rule them, the next best option is a fair playing ground where we are permitted to live under that authority without imposing it on those who do not want it. That is why the Church leaders have correctly said, if Kenya is to be a secular state, then the Constitution must not favour any one religion.


8. The Problem Of The Constitution Not Being Subject To Challenge

In drafting any given Constitution, one of the fundamental considerations is the issue of protection from unnecessary abuse. In most cases, this is provided for by the strict procedures that are laid down in the amendment process. Our outcry here is not that this protection is lacking. It is that it is made intentionally too rigid for amendment, making it so hard to alter anything in it that is not right. Let us demonstrate:

Article 2 (1) says, "This constitution is the supreme law of the Republic and binds all State organs at all levels of the government and all persons throughout Kenya."

And Article 2 (2) says, " The validity or legality of this constitution is not subject to challenge by or before any court or State organ."

And Article 283 says:
(1) An amendment to this Constitution may be proposed by a popular initiative supported by the signatures of at least one million registered voters.
(2) A popular initiative for an amendment to this Constitution may be in the form of a general suggestion or a draft Bill
(3) If a popular initiative is in the form of a general suggestion, the promoters of the popular initiative shall formulate it into a draft Bill.
(4) The promoters of a popular initiative shall forward the draft Bill and the supporting signatures to the Electoral and Boundaries Commission, which shall verify that the initiative is supported by one million registered voters.
(5) If the Electoral and Boundaries Commission is satisfied that the initiative meets the requirements of this Article, the Commission shall submit the draft Bill to each district assembly for consideration within a period of not more than three months after the date it was submitted by the Electoral and Boundaries Commission.
(6) When a district assembly has approved a draft Bill, the district chairperson shall submit a copy of the draft Bill to the Speaker, with a certificate that the district assembly has approved it.
(7) When a draft Bill has been approved by a majority of the district assemblies, it shall forthwith be introduced in Parliament, and Parliament shall proceed with the Bill in accordance with Article 282.
(8) If Parliament approves the Bill, it shall be submitted to the President for assent in accordance with Article 282 (4) (5)
(9) If Parliament fails to pass the Bill, the Bill shall be submitted to the people in a referendum.
(10)If a simple majority of citizens voting in a referendum under clause (9) support the Bill, it shall be deemed to have been duly passed by Parliament and shall be presented to the president for assent.

This entire process is too rigid and resembles the Law of the Persians and the Medes recorded for us in the Bible. It favours the current leaders and seems to lean towards a lot of political manipulation. This is dangerous for those who come after us whose lives and aspirations might find this rigidity unfavourable.

When Article 2(2) states that ¡§the validity or legality of this Constitution is not subject to challenge by or before any court or state organ¡¨, it is implied that nobody can bring up any case before the courts or the Parliament challenging the validity of the Constitution. The effect of such a provision on a country that appears divided on the very validity of the process seems to be a direct avenue to stop any person from questioning the process through which the Constitution came into being.

To that extent, this suggests that the Draft is a document immune to legal and other relevant criticism or correction. Yet even those campaigning for its adoption admit that a percentage of it is flawed. The question is thus, why would anyone believe in adopting a flawed document, let alone accepting clauses in it to the effect that its legality and validity cannot be questioned. The answer seems to lie in the fact that they foresee a number of numerous court cases with regard to the validity of the Draft. A good example is the Timothy Njoya Case. Several members of parliament have also argued that, in view of Section 47 of the current constitution, even the current Referendum process is unconstitutional, as Parliament would need to amend Section 47 before it proceeds. The drafters have thus guarded themselves in advance against such challenge. Unfortunately, Kenyans cannot be forced to adopt a document they know to be outrightly flawed. Besides, as noted above, the amendment procedure in Article 283 seems a little difficult, besides the open door given to lobbying in amendment matters, which can easily be abused.

We must ask ourselves what would happen if we voted ¡§yes¡¨ for the Draft and then people realised later that amending the Constitution was near impossible. The easiest way of handling the process is to vote ¡§No¡¨ now and then work on articles such as this. This is our reason for urging the postponement of the process.

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9. The Problem With Clauses On Persons With Disability

While the Drafters may be commended for legislation on the inclusion of persons with disability in various areas of representation, there are a couple of fundamental flaws that require redress before the Draft is adopted.

(a) In Article 13 (k) we read that one of the national values, principles and goals shall be, ¡§progressive implementation of the principle that at least five per cent of the members of elective or appointive bodies shall be persons with disabilities.¡¨ This sounds quite impressive until you notice the word ¡§progressive.¡¨ This word signifies lack of an outright commitment to effect this provision immediately.
(b) The word ¡§progressive¡¨ augers badly both for the current persons with disability and for posterity.
(c) Notice that the clauses on women preceding this one have a clear designation with regard to implementation, but the said representation is not even given a time frame in the schedules. One could easily be misled by the three years¡¦ provision in the Sixth Schedule, until one realizes that the three years mentioned are confined to the Bill of Rights and not the 5 per cent representation discussed above.
(d) Persons with disability need to know just how difficult it will be amending this particular clause given the above-mentioned reluctance on the part of the government.
(e) In addition, Braille should be included alongside Sign Language as one of the official languages of parliament in Article 131 for greater fairness, given provisions such as those in Article 9.
(f) In view of the numerous odds persons with disability face, there should be a definite clause reducing the tax burden on certain services.

10. The Constitution And Women

a) It is very easy to rejoice over the protection of the rights of women in the Wako Draft until you begin to do a comparison between the various relevant clauses. The truth is that a right is granted here and then taken away or qualified elsewhere in the same Draft. For instance, Article 38(1) provides that ¡§women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social activities¡¨ Yet, Article 34(4) states that ¡§the provisions of this chapter on equality shall be qualified to the extent strictly necessary for the application of the Islamic law to persons who profess the Muslim faith in relation to personal status, marriage, divorce and inheritance.¡¨ This is a qualification of the above right, which means that Muslim women will have a different standard for the equality stated in Article 38 (1). This puts Muslim women on a different equality footing than the rest of the women, and, certainly on a different equality basis than the men, although 38 (1) proposes the opposite.

b) The right to inherit in Article 38(2) also faces another challenge when one looks at the provision on the creation of religious courts in Article 179. The giving of room to traditional courts is outrightly a recipe for the undermining of this right since some of the traditional communities do not recognize the right of the woman in matters of inheritance.

c) Article 38(3) provides that ¡§any law, culture, custom or tradition that undermines the dignity, welfare, interest or status of women or men is prohibited.¡¨ Notably the establishment of the religious courts does undermine this right. Some of the practices of the traditional African communities really do clash in most cases with the interests of the women. In fact, even Christian denominations tend to differ on the hierarchy of men and women, seeing equality more in the sense of humanity than actual qualities. Yet, it must be mentioned here that the entire Church is agreed on the fundamental differences between men and women and have performed better than most institutions in according women their dignity.

d) Article 116 on the representation of women in parliament part (b)is not very clear on whether the special constituencies shall be physical or not. Further the criteria of women representation are not stated as to define whether they shall compete against other women from various parties or not. Beyond ambiguity, this kind of representation appears illusory. Thus in as much as it may be said that the Draft does take care of the needs of women, a closer look shows that they may be what is referred to in the legal fraternity as ¡¥paper rights¡¦, that is, rights that can only be enjoyed on paper and may never be seen in reality. We must add here that the very clamouring for the right of the woman to abortion is actually a violation of the woman¡¦s right to dignity. Reproductive health rights are thus to be understood as the rights which protect the motherhood of women, not the taking away of that motherhood. For this reason, women lobby groups that defend the so-called woman¡¦s right to terminate a pregnancy are the greatest traitors of women in that they subject women to the agony of losing a child along with the physiological and psychological effects, encouraging the men involved in the pregnancy to see women as sex machines. Most of these men cheer abortion lobbyists because they can keep enjoying the sex without ever having to bear the consequences.

11. The Double Standards On The Separation Of State And Religion

Let us reiterate that the Church has continued to request the need to leave out of the Constitution legislation on religion if state and religion are declared separate. The move by the Bill to propose the inclusion of the so-called ¡§Christian courts¡¨ does not make things better. It only aggravates matters, because:

(a) The Church has no physical manifestation of a judicial system, let alone unified courts across the denominations;
(b) Christians by divine injunction are encouraged not to take each other to court, but to instead settle matters amicably between parties. (1 Cor. 6:1-8).
(c) The Church leadership had no consensus whatsoever in this direction.
(d) We have been informed that the Hindu community did not ask for this either.
(e) Although Article 10 Clause (1) clearly states that ¡§State and religion shall be separate,¡¨ the Draft goes ahead to provide parliament the powers to legislate on religion and to interfere directly with religious freedoms. Article 195 Clause 1 states, ¡§There are established Christian courts, Kadhis¡¦ courts and Hindu courts.¡¨ Clause (2) adds, ¡§Parliament may by legislation establish other religious courts.¡¨ Why would parliament do this in a nation where the state and religion are declared separate?
(f) It is also strange to see the interference of parliament with these religious courts as stated in 195 (3) (b): We are told that Christian courts, Kadhis¡¦ courts, Hindu courts and other religious courts shall respectively ¡§Be organized and administered as may be prescribed by the respective Act of Parliament.¡¨
(g) Note that even the jurisdiction to determine questions of religious laws relating to personal status, divorce, inheritance and succession even in proceedings in which all the parties profess the same faith, parliament has a right to legislate as provided for in Clause 4. What is more, the Judicial Service Commission, through parliamentary prescription, can appoint, discipline and remove those serving in the religious courts according to Article 197 Clause (2).

Let us add that, although Clause (3) of Article 10 promises that the State shall treat all religions equally, this is already violated in the Draft as shall be demonstrated below.


12. The Special Consideration Given To Islam

With or without intention, the Draft seems to pay special attention to the exercise of the Muslim faith. The following sections prove this point:
i. In Article 34, in discussing the limitation of Rights, Muslims are singled out, even though this is an article appearing in the Chapter on equality. To prove that all are equal, but that Muslims should be given special consideration, we read in 34 (4): ¡§provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Islamic law to persons who profess the Muslim faith in relation to personal status, marriage, divorce and inheritance.¡¨ In a Draft that later provides for the consideration of personal status for Christians and Hindus, this is unacceptable. One would have expected an inclusion of all religions, if this was a serious qualification. We are not saying that other faiths should be thus singled out in this article. We are saying that this clause should be expunged from the Draft altogether.
ii. In Article 195, which discusses religious courts, there is a deliberate phrasing of Clause (3) in a manner to emphasize that the Kadhis¡¦ courts should be recognized above the other religious courts. This is what the clause says: ¡§(3) Christian courts, Kadhi¡¦s courts, Hindu courts and other religious courts shall respectively -
(a) Consist of Chief presiding officers, Chief Kadhi and such number of other presiding officers or Kadhis, all of whom profess the respective religious faith.¡¨

We argue that this is not accidental.

When one looks at the history of the East Coast, one comes across the bargain with the Sultan of Zanzibar over the ten-mile coastal strip. This is where the Kadhis were to operate. Yet, Kenya is now one nation and the strip without dispute. It must also be known that the Kadhi courts are not provided for in the Quran and are entrenched in the constitutions of just a handful of nations around the world: Kenya, Uganda, Nigeria, Jordan and Pakistan. Compared to Indonesia which is 98 per cent Muslim and has no Kadhis¡¦ courts in the constitution, Kenya is just about 6 per cent Muslim but has them entrenched.

13. The Judiciary And Mystery Of ¡§Christian Courts¡¨

As discussed earlier, Christian leaders did not push for the inclusion of Christian courts in the Draft. It has been argued that a few church leaders recommended this inclusion. If the Drafters went ahead and listened to those asking for this inclusion, we can at least conclude the following:

„« They consented to Christian courts without finding out what these leaders meant;
„« They bought the idea in order to appease the Church¡¦s protest against the inclusion of the Kadhis¡¦ courts in the Constitution.
„« If the latter is true, then it can explain why the Hindu courts were included without the Hindu community asking for them.
Another mystery inclusion is that of the Supreme Court. One wonders whose idea this was! Not only does it appear a fairly idle court due to the role that it is anticipated to play, that of listening to matters appertaining election petitions, but it seems to make no sense including it in the Draft if one goes back to the history of the East African Community¡¦s judicial structure. One can only speculate that the intention is to harmonize the judicial systems of the three East African countries since Uganda and Tanzania both have Supreme Courts, but Kenya has not had one. The problem with this conjecture, however, is that the Draft does not point to it. We are only thus left with speculation of intention.

14. The Possibility Of Being Denied Emergency Medical Services

In a country that is still battling the question of a health insurance scheme for everybody, Article 61 (2) is in bad taste due to the way it is phrased. To declare: ¡§No person may be refused emergency medical treatment¡¨ is to leave the offering of emergency medical services as optional. In other words, the government would be under no binding obligation to ensure that this service reaches everyone. It is subject to abuse by certain doctors and hospitals. Instead of the word ¡§may¡¨, the Draft should include the word ¡§shall¡¨. Emergency treatment should be the right of everyone, after which treatment the patient can be referred elsewhere. Such treatment should be available at the closest point to the person needing it.

15. Abortion Is Permitted And The Right To Life Left In The Hands Of Parliament

When one reads Article 35 (3), one might think that Abortion is outlawed, but just the opposite is true. Not only is parliament given the power by the Draft to say when it could be allowed, but does not rule out the possibility for parliament to later say it is legal. In discussing fundamental rights and freedoms, the Draft gives parliament the powers to determine every aspect of this right. This is what we read:

35. ¡§Right To Life¡¨

(1) Every person has the right to life except as may be prescribed in an Act of Parliament.
(2) The life of a person begins at conception.
(3) Abortion is not permitted except as may be provided for by an Act of Parliament.¡¨

One asks:
(a) If the Bill of Rights is about fundamental, inalienable rights of the individual, why should a group of people who are voted into office be given the powers to determine the right to life? Why is there the addition in 35 (1) stating ¡§except as may be prescribed in an act of parliament¡¨?
(b) If the life of a person begins at conception, when does it end? This is unstipulated. Every Christian must know that leaving Clause (2) open-ended is not accidental. It is intentional, and the intention is to allow the assumption that, although life begins at conception, the mother, doctor or parliamentary legislation can terminate it unnaturally. Note that if this open-endedness was not intentional, the drafters would have included the addition Christians have been pushing for, i.e. ¡§The life of a person starts at conception and ends at natural death.¡¨
(c) Abortion is also clearly provided for in Article 61 (1), which employs the recent reference to abortion as ¡§reproductive health care.¡¨ This is how the abortion lobbyists push their agenda forward. Notice how clause (1) is very cleverly phrased to camouflage abortion: ¡§Every person has the right to health, which includes the right to health care services, including reproductive health care.¡¨ Notice that, even though the right to health services is clearly stipulated, there is the qualification, ¡§including reproductive health care.¡¨
(d) Every Christian needs to read the second part of Clause 3 before the first part, i.e. Abortion ¡K may be provided for by an act of parliament, but it is not permitted. If you pay attention to the first part (Abortion is not permitted), which Christians have been asking the Drafters to declare, then you will miss the second part. This is tantamount to saying that parliament can deny the unborn the right to life. This is not acceptable at all.
(e) Capital punishment and euthanasia are undetermined. In short, the right to life is left in the hands of parliament. For this reason, no Christian should vote ¡§yes¡¨ to the Draft.

16. The Excessive Power Of Parliament

Reading through the Wako Draft leaves one thinking that Parliament is given too much power. One tends to feel some kind of dictatorship emanating from a single bodey rather than an individual. There does not seem to be any other arm of government to check if parliament is side-stepping her power.
(a) There seems to be a clash of interests between Parliament and the Judiciary, among other divisions of government. In Article 134, Parliament is given the power to call for evidence and mandated to play the role of the High Court.
(b) As seen earlier, the controvertial matters such as the right to life are left to parliament to legislate. This is not right. To prove our point, we shall cite Article 134 below:

¡§Power to call for evidence
134. In the exercise of its functions ¡V
(a) Parliament or any of its committees may call any Minister or any person holding public office, or private individuals to submit memoranda or appear before it to give evidence;
(b) a committee of Parliament may co-opt any member of Parliament or employ qualified persons to assist it in the discharge of its functions; and
(c) Parliament or any of its committees shall have the powers of the High Court in ¡V
(i) Enforcing the attendance of witnesses and examining them on oath, affirmation or otherwise;
(ii) compelling the production of documents; and
(iii) Issuing a commission or request to examine witnesses abroad.¡¨

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17. The Absolute Power Of The Media

The freedom of the media is provided for in Article 50, but is also treated in Article 49 (1) which deals with the freedom of expression. With or without realizing it, the drafters have given the media excessive powers in a manner that is bound to harm rather than build our nation. Either the drafters have no understanding of the power of the media or they have a reason for carelessly treating this section the way they do.

Every Kenyan should reject this section the way it is because:

(a) There needs to be clearly stipulated means of ensuring that media freedom is not abused. The way Article 50 (2) is phrased makes such abuse possible and leaves the recipient of media content unprotected. The State¡¦s hands are taken off any form of regulation as the Draft treats such regulation as interference with media freedom. This is what Article 50 (2) states: ¡§The State shall not ¡V(a) exercise control over, or interfere with, any person concerned in broadcasting, production or circulation of any publication, or in the dissemination of information by any medium; or (b) Harass or penalize any person for any opinion or view, or the content of any broadcast, publication or dissemination.¡¨ It would have helped to include the qualification to the effect that the state reserves the right to intervene where this freedom Is misused through the promotion of moral filth, political and social propaganda that is destructive to the community Such freedom should also be exercised in the interest of decency. To say that a regulatory body will be established does not give constitutional powers for the protection of the citizen against media exploitation.

(b) The licensing of media is not clearly and sufficiently stipulated. Clause (3) simply says: Broadcasting and other electronic media have freedom of establishment, subject only to licensing procedures that ¡V
i) Are designed to ensure the necessary regulation of the airwaves and other forms of signal distribution; and
ii) Are independent of control by Government, political interests or commercial interests.¡¨

For years we have been told that the government was in the process of developing the licensing mechanism to regulate the issuance of broadcast licenses and frequency allocations. What Christians have sadly watched is the politicisation of the issuance of licenses to people who are politically well connected. These people are issued with numerous frequencies to broadcast nationally both through radio and television. The same people are allowed to operate print media. What is lacking in clause (3) is the promised mechanism stating who qualifies to own media and under what guiding principles. Besides, with the anticipated District government system, what is going to be the relationship between national broadcasters and district broadcasters? There is also no legislation on the relationship between local and international broadcasting. For instance, although many Christians have complained about the morally offensive content on the East Africa TV, nobody seems to pay attention. The Constitution needs to envisage such conflicts and provide a mechanism for licensing international media houses that operate in Kenya insofar as they could interfere with national and private interests.
Besides, how protected is the citizen from the possibility of incitement from neighbouring countries whose stations are received hundreds of miles into our territory?
(c) There is no balance between the freedom of the media and the protection of family values. With so much liberality in the creation of commissions, one would have expected a clause in Article 50 such as, ¡§There is established a Media Censorship Board/Commission¡¨ accompanied by what such a Board would do. Everything is left to the promise of legislation. The Draft does not address sufficiently what would happen in the event that media licensing and use is actually abused by state organs as the case has been in both the previous and current regimes.

(d) There is also lack of provision with regard to the international media and their interrelationship with local media with a commitment to protect our own local talents and our cultural heritage thus a loophole is created that may promote foreign cultural practices that may not be in line with our own principles of nationhood. This makes our society a possible victim of colonization from foreign media. It may be helpful to learn from how other African nations, e.g. Uganda, South Africa, Ethiopia and Nigeria among others have dealt with these. A good example to demonstrate this need is the many Americans and Europeans who come to Kenya and repeatedly say that our FM stations sound like American stations. This is not a complement but a commentary on the erosion of our national cultural pride.

The disarray in the area of media needed more attention. It is a general feeling that enough has not been done to protect Kenyans and their culture. This is worth voting down the current Draft unless reasonable media regulation is provided for.

18. The Potentiality Of Unending Legal Suits On The Question Of Freedom

When a document is framed in a manner that leaves more room for challenge then one foresees an avenue of unending legal disputes. These is especially so when there is no direct and clear outline of the rights and the limitations of the same. This as it shall be noted can be seen to occur in quite a number of chapters in the Draft Constitution.

a) Article 34 is the main provision of the limitations to the Bill of Rights. The structure of formulation, however, leaves a lot of room for misinterpretation. The current Constitution has a better layout when it comes to structure. It gives a right in one section and follows it with the corresponding limitation immediately. This is an easier way for the common man to understand to what extent his /her right can be enjoyed. One reading the Wako Draft has to look at the right and then move back and forth in search for any possible limitations. So confusing!

b) The right to equality is provided for in Article 36 part (1), which states ¡§every person is equal before the law and has the right to equal representation and equal benefit of the law.¡¨ This however is limited with regard to a section of the society, i.e. Muslims. Thus a Muslim person desiring to exercise his or her right not to be discriminated upon in terms of ¡§sex, marital status or dress¡¨ provided for under Article 37 is limited by Article 34(4). A conflict thus arises. This sort of conflict with related complications can keep arising in courts of law.

c) The freedom from discrimination on terms of dress may also raise some socio-cultural complications. The same is provided for in Article 49(1) (b) but is not clearly limited in any of the provisions of the Draft. The question is, why single out dress as part of freedom of artistic expression? This could cause problems in churches that do insist on decent moral dressing insofar as their religious freedom is concerned.

d) Also of greater importance to note is the provision on the right of representation as far as people with disabilities are concerned. One can notice that the drafters in good faith did recognize the great part such representation plays in the running of the nation and in this regard gave them a particular part of representation in parliament. On the same grounds one would suggest that the document be formulated to embrace the same in the district assembly, which they have clearly not recognized.
e) Another point that could lead to the problem of unending legal battles is the wording of sections such as Article 195(3) which states that ¡§Christian courts, Kadhi¡¦s courts and other religious courts shall (a) consist of chief presiding officers, chief Kadhi and such a number of other presiding officers or Kadhis, all of whom profess the respective religious faith.¡¨ Note that the word ¡§or¡¨ is used at the second level and in the first level the comma is used. This, in the light of legal interpretation, could imply some kind of fusing of the two.

f) With such contradiction, passing the Draft in its current form is not wise; and since the amendment procedures are also strict, it will prove hard resolving the above legal problems. There is therefore need to iron out these technicalities before the document can be adopted in its entirety.

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b]19. The Difficulty For The Christian To Preach Freely If The Draft Is Passed[/b]

The current constitution is very explicit on religious freedom, including the right to change one¡¦s religion and the right to manifest and propagate one¡¦s faith.

In section 78(1) it states that, ¡§except with his own consent, no person shall be hindered in the enjoyment of his freedom of conscience. For the purposes of this section, that freedom includes freedom of thought and religion, freedom to change his religion or belief, and either alone or in community with others and both in public and in private, to manifest and propagate his religion or belief in worship, teaching, practice, and observance.¡¨

This is very well stated and all that was necessary was for it to be lifted as it is into the Draft for the reason that it covered everybody extremely well with regard to religious expression.

This is not the case with the sections on religious freedom in the Wako Draft which, some see as a better Constitution. In fact, Article 48 provides more prohibitions than clear stipulation. Here are the implications for the Christian:

(a) The current Constitution provides for the possibility for one to change religion if he so wishes, but the Wako Draft does not offer that freedom directly; one is left to imagine that it is there somewhere, but it is not.
(b) The Wako Draft is vague about the Christian¡¦s freedom to ¡§propagate¡¨ (preach, teach, etc) his/her faith, something clearly stipulated in the current governing Constitution. Instead, the Christian is met with lots of prohibitions camouflaged under the prohibition against compelling someone else to a faith not held by him/her. This is not accidental. While it might appear that this freedom is provided for in Article 48 (2), it is restricted by clauses 5 and 6. Article 48 (6) (c) provides that a person shall not compel another person to receive religious instruction or to take part in or attend a religious ceremony or to observe a day of rest or other observance that relates to a religion that is not that person¡¦s religion. We fear that this provision may put parents who seek to evangelise their children into jeopardy.
(c) In the light of the many prohibitions in Article 48, one gets the feeling that the Drafters were out to sound the warning that change of belief is a serious legal matter, hence the overemphasis on the word ¡§compel.¡¨
(d) Although it may have nothing about changing religion in mind, the provisions in Article 48 are bound to raise further complications when it comes to admission to schools and religious institutions at large . Article 48 (5) says: A person may not be denied access to any institution, employment or facility or the enjoyment of any right by reason of that person¡¦s religious beliefs.

This may lead to the infiltration of religious institutions by people of other faiths even for ulterior motives. This right should have been limited to situations where the employment by or access to such institutions require the application and practice of those beliefs as provided for in Article 48 (3)


(e)The honest truth here is that without stipulation that a person can change religion, Christian evangelists can easily be sued for ¡§compelling¡¨ others to become Christians even where persuasion is used. Certainly, forcing someone to believe what they do not want to is wrong; but this article can be abused by the courts if someone brought forward a suit that persuading someone else to believe like you is tantamount to compelling them to believe in a contrary religion. When Christians baptize new converts, it could easily be argued by an enemy of our faith that such a person was compelled to take an oath (sinner¡¦s prayer) and participate in a ritual (immersion in water) that was against his/her faith.

Let us mention one other crucial thing here. Every Christian also needs to know that the autonomy given to individual districts in the effort to devolve the powers of government could also hamper the preaching of the Gospel. Districts, as independent units of government, through the District Assemblies in particular, could very easily pass laws restricting or prohibiting open air meetings, house-to-house witnessing, etc. This could be under the pretext of guarding against cults or other groups that abuse this Christian privilege. This legislative authority is envisaged in Article 208 Clauses 2 and 4, which state: ¡§A district assembly may pass any laws that are reasonably necessary for, or incidental to, the effective exercise of the powers or the performance of the functions assigned to the district.¡¨ ¡V And again, ¡§A district assembly may recommend to Parliament the enactment of legislation concerning any matter outside the authority of that district assembly that is within the legislative competence of Parliament.¡¨ This latter provision is confirmed by Article 202, which discusses the conflict of laws.

In short, Christians need to encourage the government to review the Draft in this area, too, before they can vote ¡§Yes.¡¨

20. Questions On The Provisions Made For The Presidency

Although this is one aspect where the current constitution performs poorly, there was absolutely no reason why the drafters maintained a presidency with a lot of power. One, after reading the Wako draft, is left thinking that the section on the presidency was written to preserve the older members of our current society in power. Posterity does not seem to feature at all. This is what one lawyer says on this:

¡§One of the very reasons - and which seems to be the most paramount - why people in this country had to go to the streets and demand a new Constitution, was the realisation that the powers of the President in the current Constitution were extremely high and that a powerful president was a big threat to the general welfare of Kenyans. It is in this light that it was suggested that those powers be trimmed by laying down provisions that would act as a check for the same. This was in line with the principles of constitutionalism in which the three arms of government need to be separate and independent from each other and they need to act as a check from abuse or overstepping of the boundaries that are laid down. Based upon various deliberations, it was agreed that the office of the prime minister would act as a check. The other route that became available was that of giving the Parliament more powers in approving the appointments made by the president. In this regard, having examined the Draft Constitution, Article 142 (2) shows us clearly that the powers of the president have been increased instead of being reduced as expected by the Kenyans at large. The prime minister is not only the president¡¦s stooge but also an officer without real job description. Parliament, on the other hand, is rather a rubber stamp for the approval of appointments made by the president as proved by the great support the president will enjoy from the legislation procedures. Owing to the fact that the mode of impeachment is quite rigid, it will prove an impossibility to remove the president from office. The seventy five percent of MPs demanded to impeach the president, plus the entire impeachment procedure with the percentage suggested being higher than that of amending the Constitution, itself leaves one wondering why the election of the president is made too easy while his/her removal from the office is made so difficult. In view of all this, it can be positively concluded that the powers of the president are unacceptably high with no clear mode of checks, which leave it subject to abuse. I would therefore suggest that Kenyans, having through experience witnessed the sufferings that such powers can impose, need to vote ¡§No¡¨ until there are clearer and better checks and balances on the office of the president.¡¨

21. Questions Regarding The Office Of Prime Minister And The Two Deputies

The truth about the office of Prime Minister as presented in the Wako Draft is that:

(a) The Prime Minister has no clearly stipulated duties;

(b) He is presented as a puppet of the president. What is more, he has two deputies whose work is not stipulated, and no wonder. If the Prime Minister has no clear role, why would his deputies have such roles! The problem is also that these offices are at the expense of the taxpayer. To prove my point, see what Article 163 says:

¡§Appointment and functions of Prime Minister
163. (1) There shall be a Prime Minister of the Republic, who shall be appointed by the President in accordance with the provisions of this part.
(2) The Prime Minister shall be accountable to the President and shall, under the general direction of the President ¡V
(a) Be the Leader of Government business in Parliament;
(b) Perform or cause to be performed such other duties as the President may direct; and
(c) Perform such other functions as are conferred by this Constitution and any other functions as the President may assign.
(3) In the absence of the Prime Minister, one of the Deputy Prime Ministers designated by the President shall perform the functions of the Prime Minister.¡¨

It is doubtful that this is what Kenyans wanted of the Executive.


22. Questions on the Ethics and Integrity Commission

The major challenge is that the ethical conduct and integrity of the officials is not clearly stated. People who are expected to scrutinize others in matters of ethical conduct and integrity should be defined as people of exceptional character as part of their qualification.


23. Questions On A Devolved Government

The main role and goal of devolution ought to be to ensure that the resources of a nation are equitably distributed throughout the country. This plays a fundamental role in the planning and the determination of the services and goods by the government in power. In a cosmopolitan society the question of resources and the allocation of the same need to be held up in high standards;

a) The Draft bases the unit of devolution at the District level. It is asserted in the provisions on the same that the current District boundaries shall form those units. Right here is the first problem: that of inequality having already been established in the establishment of the districts, some on purely political grounds.
b) Most of these districts can be traced either to strict tribal lines or colonial designations. The colonial intent was to divide and rule, not to unite. Hence, forming District governments on those lines is tantamount to breeding numerous problems. The status quo being maintained will then enhance tribalistic spirit and to that extent undermine the national goals and bonds of peace, love and unity.
c) Another fact that comes out clearly is that of the conflict of duties between the central government and the District government. An example is on the role that a member of the District assembly is to play in representation and the role of the parliamentarian owing to the fact that both seem to be representing the same people. Who is top manager of the Constitutional Development Fund? Will the Member of Parliament have the duty of drafting laws alone or is there any other responsibility with regard to the constituencies? Further, what shall happen regarding placing the jurisdiction of a body like the Teachers¡¦ Service Commission under the District government as proposed by the Draft? Will not the teachers feel disenfranchised? All these questions seem to beg for more answers.
d) On the issue of transition it stands out clearly that the provincial administration shall stand dissolved and the PC¡¦s, DC¡¦s and the DO¡¦s and most importantly, the chiefs will be done away with. Article 24 of the sixth schedule states that they shall be redeployed. What about matters of security? Why wouldn¡¦t they retain them in the district government and state that they too stand and be elected? If such a provision exists at all then it hasn¡¦t come to our notice.
e) Keeping in mind that the very reason the provincial administration seemed to under-perform was the mode of appointment and the influence of political loyalties or correctness, why not get the occupants of these offices elected rather than appointed, but still maintain the system?
f) The mode of representation both in the District council and the District assembly is framed to ensure that representatives are from within and thus there may be lack of smooth flow of resources and manpower since everyone will rather developed the district of final residence rather than where they have migrated.
g) The District Assemblies are given the power to make District laws. How will these laws be effected in the context of unending disputes given the multi-tier levels of the judiciary?
h) Finally it will be remembered that during the era of the provincial administration the government used to ensure that the Pc¡¦s, Dc¡¦s and the Do¡¦s used to be moved all across the nation thus distributing of mental resources. Under the Draft, this is clearly not possible.
i) The system on a further look seems also to bring out a double taxing system, in which Kenyans may have to dig deeper in their pockets in order to operate this double system .The economic realities in the country today may not permit the recommendations under this system. Eventually instead of development, it will promote under-development. On these grounds the case of a ¡§No¡¨ vote is further strengthened for the betterment of the country at large

24. Problem With Freedom Of Assembly

Assembly, demonstration, picketing and petition
53. Every person has the right, peaceably, unarmed and without the requirement of prior permission, to assemble, to demonstrate, to picket, and to present petitions to public authorities.

This Article in providing for that freedom gives the opportunity for it to be abused because most of the demonstrations have ended in violence. The government needs to exercise control over that violence.

CONCLUSION

In the light of the discussion in this document, it is our hope that our case is made clear. It is our desire that the government listens to our plea to postpone the Referendum for at least six months to allow for a redress of the contentious issues. We have waited this long; we can wait six months. Meanwhile, there should be an amicable discussion over the various points of tension with the view to listening to various stakeholders on suggestions regarding the way forward. We cannot please everybody, but we can do better on certain articles than is presented in the Draft. If this wait is not possible, then it is better to vote ¡§no¡¨ so that we can naturally have time to address the shortcomings of the current constitution, re-examine the current Draft and come up with a constitution that is well-thought, which has the participation of most Kenyans and which is fitting for posterity.

We are asking every Christian to share lovingly the reasons why it is better to vote ¡§no¡¨ rather than ¡§yes¡¨ during the Referendum. However, this decision is predicated on the government¡¦s unwillingness to postpone the Referendum to allow redress of the contentious issues.

As a ministry, we are not against personalities who hold onto the ¡§Yes¡¨ position. We are against the position itself, because it is bound to undermine the well-being of many Kenyans almost as soon as it is adopted. We think that everyone who wishes to vote ¡§yes¡¨ in the Referendum should be allowed to do so without any intimidation. Yet we implore that he/she does so based on good grounds.

Let us indicate here again that our leaning towards the ¡§No¡¨ position is not influenced by any form of external persuasion or intimidation. It is the result of hours spent examining the Draft. We thus stand by it until clearly convinced otherwise. We offer the document prayerfully to the Church for the good of the believer in Christ and any God-fearing Kenyan. We encourage every pastor or Christian leader who obtains this document to share it graciously with those under his/her leadership and contact us in case there are any questions.

May God's Spirit of truth indeed lead everyone who reads to the knowledge of the truth, which sets free.

R.K.

Eldoret,
19th September, 2005