NCEC Statement on Situation in Kenya

[Onyango Oloo]

Sunday November 13, 2005

NCEC STATEMENT ON SITUATION IN KENYA

Disturbed and concerned by the volatile political and constitutional crisis prevailing in Kenya, National Convention Executive Council- NCEC makes the following statement:

1. Having observed that the pre-conditions for a democratic and legitimate constitution making and referendum were not yet in place and that the government's actions limit the choice of the people and do not reflect great progress in efforts to strengthen democracy;

2. Condemning police brutality and attacks including outright firing at and killing innocent people on peaceful assemblies and;

3. Aware that the real source of political violence in Kenya is not just the government's unacceptable strong-arm tactics, but its failure to take the essential, concrete steps to create a democratic, fair and legitimate constitution making process including ratification process- Referendum law;

4. Stating unequivocally that NCEC will not be a silent witness to human rights abuses and strongly condemning all incidents of political violence organized by politicians and state security forces;

5. Concerned of the reawakening of ethnically-based violence and politics

6. And recognizing clearly that the political repression underway in Kenya as intolerable and in complete contradiction of the values and principles that were both the foundation of our liberation struggle and of our solidarity with that struggle.

NCEC call and demand the following:

a. That state security machinery forwith stop use of excessive force including shoot to kill against innocent people

b. That the government and opposition alike to respect the rights guaranteed to Kenyans under their constitution and international conventions.

c. That the groups responsible for the recent outbreaks of violence cease their actions and settle their differences in a peaceful fashion and to make sure that a new democratic constitution is made and ratified through open, fair and transparent process, which meets international standards and recognition.

d. That Kenyan government takes drastic measures to protect its citizens from violence and to uphold their rights of freedom of expression, assembly and association without intimidation and or discrimination.

e. That the President raise above irresponsible and narrow partisan politics including giving tokenism inducements and instead stand in solidarity with those feeling the pain and suffering caused by the abuse of their rights, violence and intolerance, economic deprivation and hunger.

f. That government cultivates new culture of open and frank dialogue to curb increasing intolerant, repressive and violent policies witnessed over the past 3 years whose consequences could be devastating in the near future.

g. That President and those among the ruling political elite who truly value democracy, and wish to protect the future of all of Kenya’s citizens to take extraordinary steps to end the delicate country's political and constitutional crisis and place it upon a path toward peace. We ask that the President initiate an unconditional dialogue with the political opposition and representatives of civil society aimed at ending this impasse. We call upon the President to seek the diplomatic intervention of appropriately concerned African states and institutions to assist in the mediation of the current volatile political conflict.

h. Finally, Mr. President, the non-violent civil disobedience that is currently growing and increasingly met with police brutality and excessive force are reality signals of disillusionment and disfranchisement. Police brutality trends in the abuse of human rights are not only unacceptable but they are threats to country’s stability and they are undermining the economic and political development people desire and deserve. We believe that a peaceful solution is possible if you find a way to work with others in and outside of your government to create an effective process for a transition to a more broadly supported government upholding the democratic rights of all.



Signed for and Behalf of NCEC by

Ndung’u Wainaina
Programme Manager, NCEC.

[kamalet]

As part of the NARC manifesto, Kibaki promised Kenyans a constitution. A draft has been given to the Kenyan people. The president must be seen to support a project he promised to deliver to Kenyans as an election promise. How then is he supposed to take a neutral stand to the draft? The accusation that the president is being partisan is grossly misplaced as the constitution has nothing to do with party politics.

The issue of whether the document is flawed or not does not arise as Kibaki cannot ram the document down our throats. As the judges said today, only the people of Kenya will decide whether they will be governed by the Wako or Lancaster constitutions.

As for violence, unless people are willing to loudly condemn the politicians who are inciting this violence, it will continue unabated, and we should not forget who holds that monopoly of violence. When no incitement occurs, police brutality does not happen.

If only people can wisen...just a wee bit!

[aeichener]

Kamalet, you don't understand the legal situation correctly. It is not the office of the government to benignly impart a constitution upon its lowly and ingrateful subjects and underlings. This may have been the idea of Charles X. of France, but political notions have changed since 1824. In today's common perception worldwide - theocracies aside - this most august office is vested in the constituent power of the people.

While the government can and should fulfill its duty in furthering and financing the constitutional process, it does not have the right to lobby and campaign for specific provisions and drafts. The people of Kenya are the sovereign (at least since 1963, ahem, when Her Majesty moved out...), while Kibaki is not the sovereign of the people.

And if the present cabinet feels otherwise, then let it just try to dissolve the people and elect another one (phrased after Brecht).

Alexander

[kamalet]

Alex,

I actually agree with you on the legal basis. But there is a political angle to it. Kibaki and his government promised Kenyans that they would facilitate the delivery of a new constitution for the people of Kenya. That is the political angle I am talking about.

There has to be a political will to deliver, and I think it would be a contradiction should we come this far and then not appear to support what you have shepherded. What I would find unacceptable would be a requirement to Kenyans that they must vote YES because it is a government project. The president can support it as Kenyan and even as president, but must allow those who do not agree with what he has shepherded to say NO.

Obviously there will those stupid enough amongst us to just listen to the politicians and do their bidding without thinking. Those ones I have little time for!

[aeichener]

Okay, okay Kamalet. I even agree with you on this political point :-). If Kibaki had indeed held his promise in time, and had "delivered" any constitution draft, and presented it to the people's decision in 2003 or even in mid-2004, the reaction would probably have been quite different, even if the draft has been (almost) the same as the present Wako draft. A good part of the present grudge and frustration (though by far not all of it) is due to the long procrastination and to the frustration of the wnanchi *and* the elites. And in this respect, the constitutional referendum also serves as an outlet for a very general and widespread frustration and deep disappointment. Whether such a development (turning the constitution referendum into a fight "The Government v. The People") is a good thing, is another question.

If - and I just say "if", because unhatched eggs are not to be praised -, if the people vote down the constitution draft, this mere action as such would however be a major, a very major victory and a landmark for the democratic development not just of Kenya of entire Africa, comparable only with the peaceful turn-over in South Africa.

Alexander

[abdulmote]

Wait a minute Kamale. There are two distinct acts being commissioned here: Firstly there is the “delivery” process as you put it. The “promise” that NARC had given to its electorate that it shall fulfil within the first hundred days on coming to power. The commitment that as a government on the throne, it shall facilitate the enacting of the long awaited Constitution precisely as how the people had desired! That was the promise, and indeed the first of the social contract.

Then there is the actual creation of the Constitution. And this is another distinct act which could not and should not have been usurped by the Government of Mwai wa Kibaki. It was a process which the people as the sovereign had a natural and reserved right to undertake themselves, so as to contain their own original ideas and desires as they saw fit. The creation of that document to be called the new Constitution, was to have originated from no one but the thinking of the citizens. And that is a different matter all together.

In my opinion, what you and the courts are suggesting here is nothing but an insult to the intelligence of Kenyans. How can you simplify the people’s natural right to have the constitution they want and hold a referendum upon it, to that of an act of creating a document specifically manufactured to cater for partisan interests through obvious but corrupt and partisan process? How can the public’s fundamental right of deciding upon such an exercise of constitution making via a referendum be used as a shield to endorse illicit contents in the same which are nothing but a creation of a few individuals who have certainly and without doubt usurped their mandate of doing the same as we all know of? How can that be?!! And you are telling us that that is how it should be? Heh?

Imagine that Wako had included in his Draft a clause stipulating that the next president to win the elections ‘shall rule for life’! Obviously that would not be a reflection of the people’s views as expressed earlier in the process. Based on the Court's decision which interestingly was endorsed by both sides of the divide and including you, does it not then follow that that content would have to be acceptable whether the people liked it or not, since “the holding of the referendum cannot be challenged by anybody”?! Is the flaw too difficult to distinguish?

And this is where our constitutional courts have certainly failed to protect the citizens from whimsical and usurping actions by its servants. How shallow of thought can it be to attempt to cover an illegal act under the guise of such fundamental right? A decision of the Constitutional Court?

That aside, I could also not help but read mischief on the part of the judges on leaving the coming to a decision for so long up until now, and only for them to declare that some of the disputes have been “overtaken by events” and so can no longer be reversed! Surely, when the case was initially presented for their deliberations and decision, they could have immediately realised the nature and importance of the urgency in doing the same considering the public’s interest, and so give the same a topmost priority and immediate attention. But going on to leave everything to the last three minutes of the day and saying we have run out of time? Come On!

Mind you, here I am not agitating for neither side, but only trying to make sense of the outcome. If you ask me, I am yet to be convinced that we are headed for a genuine and desirable change and that will remain to be so for a significant time to come, constitution or no constitution. Don’t get me wrong o this. Change is inevitable and will certainly come some day in the future. But that genuine and desirable change will only come when the metaphorical ‘ordinary’ Kenyan learns and categorically decides to take the leadership of her country by herself and FOR herself.

[abdulmote]

The following were some of my reactions as posted in The Nation forum when the constutional suit was first lodged towards the end of August, some two and half months ago!

Quote: Originally posted by abdulmote on 29/08/2005
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I say bravo to all those voices of reason who are up and against this heinous draft which is proposed to be our constitution. Indeed the small part which is the result of usurpation of democratic powers honestly given by the innocent public, renders the whole document as vile and an abuse of the people's generosity and trust. It thus follows that this process MUST BE STOPPED at all costs in its tracks, for to allow it to thrive on the people's naivety, is to perpetuate our own destruction!

And whilst some have initiated legal proceedings towards that effort, the courts should have treated this case as a matter of urgency and of utmost public interests and concern, and therefore should not have prolonged the agony that we have to endure.

In this regard, I find it as naivety of the highest order, to proceed with the direction towards the referendum, because to do so would be to assume legitimacy of the process, by allowing the draft to be decided upon, as if it had been created legally and honestly so!

In saying that, I strongly believe that it is the people's absolute and democratic right, to strongly protest and refuse to be dictated upon, especially where and when their fundamental rights are being abused and trumped upon!

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And have a look at this:-


Quote: Originally posted by abdulmote on 29/08/2005
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(In responding to (some) observations given on the above), I have no doubt that there will never be a desirable atmosphere as we would have wished, which will facilitate the ideal climate for creating the just constitution. Rather, it falls upon those who can figure out the way forward, with honesty and true dedication, to fight it out with the backing of the innocent and courageous citizen who have an absolute ability to win in this uncompromisable task.

Just imagine this; if the NARC government which was voted in with such a huge and popular mandate has become what it has become in its betrayal of the people's trust, what makes you think that there may be others who will simply remain honest and true to their word for the lifetime of their positions and status?

On the other hand, it falls upon those who are in unshakeable position of demanding for true transparency, accountability and justice, to vigorously fight on behalf of the people, and with the support of the people, till there builds enough momentum to be able to realise what the people trully deserve and want.


And if the righteous should fail to fullfill their God given mandate, then their passiveness and idleness of their minds, will only be a positive effort towards perpetuation of our own collective destruction!

But what is more important than all of the above, is to be alert and aware of the timing and promptness so required, to iniate that fight, lest any delays serve to enhance and strengthen the abilities of the people's enemies!

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And now think on what is happening.