Post by miguna on Jan 2, 2006 20:24:56 GMT 3
WE NEED A LOYA JIRGA; NOT A FULL-BLOWN CONSTITUENT ASSEMBLY
By MIGUNA MIGUNA* - © 31 December 2005
THE NATIONAL CONVENTION EXECUTIVE COMMITTEE (NCEC), leading members of the Orange Democratic Movement (ODM) and some intellectuals have publicly told Kenyans that the only way to get a new constitution in the New Year is through a Constituent Assembly process. They have not explained in detail and to our satisfaction the costs involved, the logistics necessary, as well as the political and legal mechanisms of implementing this process. Obviously, no one has paid any close attention to the psychological, social and political ramifications of another potential constitutional debacle on the Kenyan people.
But for now, we will give them the benefit of the doubt and assume that they must have carefully thought through their proposals. We need to point out, however, that such a serious suggestion cannot be accepted merely on the basis of the prominence of its proponents.
On his part, president Kibaki’s government has vaguely called for an “all inclusive process to bring forth a constitution Kenyans want.” I am not sure what that means, particularly when we consider president Kibaki’s own dismal record on “consultations” and “all-inclusiveness.” Neither am I certain of the actual process that would bring that constitution about. The devil, as they say, is in the details.
Kibaki’s critics have roundly condemned his latest “initiative” as just another ill-conceived or deceptive government project. They have said that what Kibaki is calling for is for “a few selected regime-friendly experts” to prepare the new draft constitution for president Kibaki himself. Kibaki’s critics conveniently point at the manner he went about preparing the Wako Mongrel as a sign of trouble ahead. If these critics are right, then Kibaki has once more misjudged the desires, aspirations and dedication of the Kenyan people. That would be unfortunate, coming hot in the heels of the referendum debacle. However, like we offered the Constituent Assembly advocates, let’s cut Kibaki some slack here. For once, we will assume that he means what he says.
Both conceptually and intrinsically, there appear to be no fundamental flaw with the proposed Constituent Assembly process. Many constitutions the world over have been constructed through this path. In fact, many eminent constitutional scholars prefer this process to a few selective experts. If handled democratically, transparently and fairly, this process could be one of the most appropriate means of healing a deeply divided nation like Kenya.
But the process is as well traveled as it is littered with dangerous political potholes.
The success of a full-blown Constituent Assembly process entails that there exists a widely acceptable way of popularly choosing representatives from all sectors, interests, parties, classes and regions of the country. However, with the heightened ethnic, political, regional and sectarian interests and rivalries prevailing in the country at the moment, the Constituent Assembly process presents a gigantic conundrum to Kenyans like no others before.
In my view, absent an instantaneous resolution of the simmering differences and mistrust between our political leaders (and we cannot wish these differences away), the Constituent Assembly process, if implemented, promises to be just another prolonged, protracted and expensive process. Selecting representatives to the Constituent Assembly will simply present another forum for our battle-hardened political bulls to fight each other on. Even if we manage to get a full hall of delegates, there is no guarantee that they will agree on anything, leave alone work together up to the completion of an acceptable draft. Again, we are not told the criteria of selecting delegates and by whom. We are also unaware of whether these delegates will use the already existing views as contained in the Constitution of Kenya Review Commission (CKRC) records, whether they will unilaterally substitute their views for that of Kenyans or how they will avoid similar problems that faced the Bomas delegates. NCEC and others have not explained how politicians will be kept away from compromising the delegates.
Ultimately, it is the ordinary people that will suffer the consequences of that Constituent Assembly political bull-fight.
The suggestion by the NCEC that the so-called “political class” be excluded from the Constituent Assembly process is not only naïve to the extreme, it is impractical. Apart from apparent conceptual problems with how NCEC defines “class”, how, for instance, would anyone exclude president Kibaki and his government or the LDP from such a process? And even assuming that one could actually do it (which is highly doubtful), how legitimate would such a process be without the support or endorsement of the existing political parties and their leaders? Unless the NCEC has some hidden weapon to render our politicians and political parties irrelevant (which cannot be done effectively in a representative democracy), I do not see how useful this proposal is.
Kenyans already gave their views to the CKRC. The CKRC spent public funds and went throughout the country for months while painstakingly collecting and compiling the people’s views, which they then published. The CKRC drafts contain concise renditions of our views on the kind of constitution we want. They also compiled verbatim what Kenyans said they disliked with the current political system, process, power-arrangements and constitution.
As far as I am aware, there have been no credible controversies around these views. And despite the rumblings from those close to the Kibaki regime during and after the conclusion of the Bomas process, a legitimate constitution draft (what has been uniformly referred to as the “Bomas Draft”) was prepared and is currently available either as a resource tool or an actual draft. That document exists. It captures, in both spirit and content, the type of constitution Kenyans want. It is this draft that can either be subjected to a referendum without change or it could be edited for syntax, grammar, brevity and in order to address limited specific issues.
In any event, thanks to the creativity of president Kibaki and his close confidantes, we now have as well, the Wako Draft. Although this document was popularly rejected at the referendum on November 21st, 2005, both critics and supporters have acknowledged that there were many commendable provisions in this draft. Those laudatory sections could be incorporated into the Bomas Draft by a select group of drafters equitably proposed by the major political parties, civil society organizations and professional bodies such as the Law Society of Kenya (LSK) and the International Commission of Jurists (ICJ). The operating word here is: equitably proposed. That means no group should have more representatives than the others. The work of this group will NOT be to DRAFT a new constitution; it will be limited to editing the existing Bomas Draft and INCORPORTING the limited changes agreed to by all the interested parties, but always in conformity to the views expressed by Kenyans in the CKRC records.
Other people have even cited the so-called “Naivasha Accord Constitution Draft” as one that should also be looked at when trying to craft our illusive gem. However, because I have no particular knowledge of this draft [except that I didn’t like the secretive and elitist nature of its preparation], it might be prudent for me to say nothing on it at all at this moment.
The constitutional merry-go-round that accompanied the preparation of the three drafts has cost Kenyans literally billions of shillings. Professor Ghai recently opined that this could very well be the most expensive constitutional process in the entire world. It might also be the longest constitutional quest of any one country. Consequently, the proposed Constituent Assembly process will not just extend the long wait before Kenyans get a new constitution, it will also puncture more holes in our already empty pockets.
Therefore, it would seem obvious that Kenyans should not have to bear the economic and emotional burdens of shouldering another inordinately expensive constitutional process. The scarce resources we have should be used for staving off the biting hunger, reducing homelessness and for rehabilitating the dilapidated roads, housing, education and health infrastructure. Rather than subject us to more decades of repaying debts that were acquired without our consent or permission, those proposing the Constituent Assembly process should think of the most cost-effective ways of reducing and alleviating the collective suffering of the majority of Kenyans.
There is no value in spending more billions of shillings on a Constituent Assembly process when Kenyans are dying of hunger. Neither is there value in spending any amount of shillings on any selected so-called experts as implied by president Kibaki, no matter how knowledgeable such experts might be.
What Kenyans need urgently is for a limited loya jirga under a giant tent where representatives of all political parties, faiths groups, professional bodies and civil society can hammer out the mechanism of getting a manageable number of representative Kenyans, including those with drafting skills, from these groups (and representing all regions of the country, youth and women), so that the Bomas Draft can be transformed into an acceptable constitution for Kenyans. But this time around, all negotiations must be conducted openly, transparently, fairly and honestly. Anything short of this will not work.
______________________________________________________________________
*The writer is a Barrister & Solicitor in Toronto, Canada
By MIGUNA MIGUNA* - © 31 December 2005
THE NATIONAL CONVENTION EXECUTIVE COMMITTEE (NCEC), leading members of the Orange Democratic Movement (ODM) and some intellectuals have publicly told Kenyans that the only way to get a new constitution in the New Year is through a Constituent Assembly process. They have not explained in detail and to our satisfaction the costs involved, the logistics necessary, as well as the political and legal mechanisms of implementing this process. Obviously, no one has paid any close attention to the psychological, social and political ramifications of another potential constitutional debacle on the Kenyan people.
But for now, we will give them the benefit of the doubt and assume that they must have carefully thought through their proposals. We need to point out, however, that such a serious suggestion cannot be accepted merely on the basis of the prominence of its proponents.
On his part, president Kibaki’s government has vaguely called for an “all inclusive process to bring forth a constitution Kenyans want.” I am not sure what that means, particularly when we consider president Kibaki’s own dismal record on “consultations” and “all-inclusiveness.” Neither am I certain of the actual process that would bring that constitution about. The devil, as they say, is in the details.
Kibaki’s critics have roundly condemned his latest “initiative” as just another ill-conceived or deceptive government project. They have said that what Kibaki is calling for is for “a few selected regime-friendly experts” to prepare the new draft constitution for president Kibaki himself. Kibaki’s critics conveniently point at the manner he went about preparing the Wako Mongrel as a sign of trouble ahead. If these critics are right, then Kibaki has once more misjudged the desires, aspirations and dedication of the Kenyan people. That would be unfortunate, coming hot in the heels of the referendum debacle. However, like we offered the Constituent Assembly advocates, let’s cut Kibaki some slack here. For once, we will assume that he means what he says.
Both conceptually and intrinsically, there appear to be no fundamental flaw with the proposed Constituent Assembly process. Many constitutions the world over have been constructed through this path. In fact, many eminent constitutional scholars prefer this process to a few selective experts. If handled democratically, transparently and fairly, this process could be one of the most appropriate means of healing a deeply divided nation like Kenya.
But the process is as well traveled as it is littered with dangerous political potholes.
The success of a full-blown Constituent Assembly process entails that there exists a widely acceptable way of popularly choosing representatives from all sectors, interests, parties, classes and regions of the country. However, with the heightened ethnic, political, regional and sectarian interests and rivalries prevailing in the country at the moment, the Constituent Assembly process presents a gigantic conundrum to Kenyans like no others before.
In my view, absent an instantaneous resolution of the simmering differences and mistrust between our political leaders (and we cannot wish these differences away), the Constituent Assembly process, if implemented, promises to be just another prolonged, protracted and expensive process. Selecting representatives to the Constituent Assembly will simply present another forum for our battle-hardened political bulls to fight each other on. Even if we manage to get a full hall of delegates, there is no guarantee that they will agree on anything, leave alone work together up to the completion of an acceptable draft. Again, we are not told the criteria of selecting delegates and by whom. We are also unaware of whether these delegates will use the already existing views as contained in the Constitution of Kenya Review Commission (CKRC) records, whether they will unilaterally substitute their views for that of Kenyans or how they will avoid similar problems that faced the Bomas delegates. NCEC and others have not explained how politicians will be kept away from compromising the delegates.
Ultimately, it is the ordinary people that will suffer the consequences of that Constituent Assembly political bull-fight.
The suggestion by the NCEC that the so-called “political class” be excluded from the Constituent Assembly process is not only naïve to the extreme, it is impractical. Apart from apparent conceptual problems with how NCEC defines “class”, how, for instance, would anyone exclude president Kibaki and his government or the LDP from such a process? And even assuming that one could actually do it (which is highly doubtful), how legitimate would such a process be without the support or endorsement of the existing political parties and their leaders? Unless the NCEC has some hidden weapon to render our politicians and political parties irrelevant (which cannot be done effectively in a representative democracy), I do not see how useful this proposal is.
Kenyans already gave their views to the CKRC. The CKRC spent public funds and went throughout the country for months while painstakingly collecting and compiling the people’s views, which they then published. The CKRC drafts contain concise renditions of our views on the kind of constitution we want. They also compiled verbatim what Kenyans said they disliked with the current political system, process, power-arrangements and constitution.
As far as I am aware, there have been no credible controversies around these views. And despite the rumblings from those close to the Kibaki regime during and after the conclusion of the Bomas process, a legitimate constitution draft (what has been uniformly referred to as the “Bomas Draft”) was prepared and is currently available either as a resource tool or an actual draft. That document exists. It captures, in both spirit and content, the type of constitution Kenyans want. It is this draft that can either be subjected to a referendum without change or it could be edited for syntax, grammar, brevity and in order to address limited specific issues.
In any event, thanks to the creativity of president Kibaki and his close confidantes, we now have as well, the Wako Draft. Although this document was popularly rejected at the referendum on November 21st, 2005, both critics and supporters have acknowledged that there were many commendable provisions in this draft. Those laudatory sections could be incorporated into the Bomas Draft by a select group of drafters equitably proposed by the major political parties, civil society organizations and professional bodies such as the Law Society of Kenya (LSK) and the International Commission of Jurists (ICJ). The operating word here is: equitably proposed. That means no group should have more representatives than the others. The work of this group will NOT be to DRAFT a new constitution; it will be limited to editing the existing Bomas Draft and INCORPORTING the limited changes agreed to by all the interested parties, but always in conformity to the views expressed by Kenyans in the CKRC records.
Other people have even cited the so-called “Naivasha Accord Constitution Draft” as one that should also be looked at when trying to craft our illusive gem. However, because I have no particular knowledge of this draft [except that I didn’t like the secretive and elitist nature of its preparation], it might be prudent for me to say nothing on it at all at this moment.
The constitutional merry-go-round that accompanied the preparation of the three drafts has cost Kenyans literally billions of shillings. Professor Ghai recently opined that this could very well be the most expensive constitutional process in the entire world. It might also be the longest constitutional quest of any one country. Consequently, the proposed Constituent Assembly process will not just extend the long wait before Kenyans get a new constitution, it will also puncture more holes in our already empty pockets.
Therefore, it would seem obvious that Kenyans should not have to bear the economic and emotional burdens of shouldering another inordinately expensive constitutional process. The scarce resources we have should be used for staving off the biting hunger, reducing homelessness and for rehabilitating the dilapidated roads, housing, education and health infrastructure. Rather than subject us to more decades of repaying debts that were acquired without our consent or permission, those proposing the Constituent Assembly process should think of the most cost-effective ways of reducing and alleviating the collective suffering of the majority of Kenyans.
There is no value in spending more billions of shillings on a Constituent Assembly process when Kenyans are dying of hunger. Neither is there value in spending any amount of shillings on any selected so-called experts as implied by president Kibaki, no matter how knowledgeable such experts might be.
What Kenyans need urgently is for a limited loya jirga under a giant tent where representatives of all political parties, faiths groups, professional bodies and civil society can hammer out the mechanism of getting a manageable number of representative Kenyans, including those with drafting skills, from these groups (and representing all regions of the country, youth and women), so that the Bomas Draft can be transformed into an acceptable constitution for Kenyans. But this time around, all negotiations must be conducted openly, transparently, fairly and honestly. Anything short of this will not work.
______________________________________________________________________
*The writer is a Barrister & Solicitor in Toronto, Canada