Post by adongo12345 on Nov 6, 2006 23:28:54 GMT 3
By Adongo Ogony
The constitutional thieves in the Kibaki government who have been playing games with Kenyans for the last four years are up with new tricks. This time their tool of choice is something called the Multi Sectoral Committee on Constitutional Review.
This committee was started not long ago when Kibaki and his people were awoken by the loud demands by Kenyans for minimum reforms on the current constitution to provide for a level playing field during the forthcoming General Elections.
At first it looked like the president and his people were willing to work collaboratively with political parties and other interest groups to get the constitutional review process off the ground. Time was running out, considering it has taken almost one year since the government lost it’s attempt to impose a constitution on Kenya and were bounced off at the referendum.
President Kibaki first started with the Kiplagat Committee which told the president what everybody else knew already, namely to engage Kenyans in a meaningful way to resolve the contentious issues through a people driven process.
As usual Kibaki sat on the report until the opposition parties started demanding minimum reforms. The president first responded to these demands quite angrily more or less like he was putting down the usual “pumbavus” who tell, “lies” to Kenyans. His choir picked it up and all of a sudden there was a competition as to who can tell the ODM and others to shut up and forget about minimum reforms.
The process that led to the current Multi Sectoral Committee started fairly reasonably with politicians realizing the constitution is not an agenda for any political party. It is an agenda for the whole nation. Even though it was just the political parties invited at the meeting, civil society groups fought hard and got some representation in the committee increasing the number of participants to forty.
It is still a mystery to me how representatives from the civil society were chosen, but I am willing to give them the benefit of doubt and assume they did everything in their power to be representative instead of picking their cronies and those acceptable to the government.
The trouble with the Mutli-Sectoral Committee is that they seem to be under the complete control of the Minister for Justice and Constitutional Affairs, Martha Karua who announced to Kenyans the other day they have come up with a plan to give Kenyans a new constitution by September 2007. Personally I was excited with the prospect until I read the road map. To call it a joke is to insult jokers. This is a plan specifically designed to fail and I am amazed that the Kenyan media and even members of the committee have not bothered to scrutinize the new constitutional Houdini from Karua and company. This is how it is supposed to work.
First parliament has until Nov. 30 to enact a new constitutional reform law to integrate the process into the current constitutional. Makes you wonder whether the Multi-Sectoral Committee itself is not an illegal entity, but I will spare them that headache for now. The simple fact is that a new constitutional review act should have been in place before the committee was formed.
Now, how on earth does Ms Karua who knows very well how parliament works and members of the committee expect parliament to enact this law in three weeks! That is not going to happen. First someone has to draft the bill and try to do it in a consultative and inclusive way so that it does not become another tag of war in parliament.
The bill should avoid the arrogant “we have the numbers” attitude that characterized the Kiraitu bill that gave birth to the stillborn Wako Mongrel. The Kiraitu bill was passed at midnight after a mediocre three-hour debate in which the government told those opposed to the bill to go to hell. They did and walked out of parliament and there was jubilation and celebration after the “Kiraitu victory” which turned out to be a very short sighted and suicidal maneuvre by the Kibaki government.
Secondly the Karua bill will need two-thirds majority to change Section 47 of the constitution. Kiraitu avoided that route primarily because he did not want a genuine dialogue with those who opposed the bill as presented. The kind of dialogue necessary would have meant changing some aspects of the Bill. Kiraitu told them, ‘Not under my watch” and the rest is history. Martha Karua does not have that luxury and yet hearing her lecture fellow parliamentarians one gets the impression he expects people to follow her orders.
When she announced the new process, the iron lady told the legislators they have until the first week of Dec to come up with the new act. Sounds more like a lecturer reminding her students to submit their final papers by a certain date or else. My sense is that unless they change their tact, this thing of Martha is going to be stuck in parliament for a long time.
The second phase of the road map starts after the new constitutional review act is passed into law. According to the airtight timetable of the Martha Committee that would be between January and April 30 2007. This is the process through which 344 delegates will be elected from the districts and other stake holding groups.
It is these delegates who will then meet, resolve the contentious issues draft a new constitution take it back to parliament and if parliament accepts their draft take it to the referendum by Sep. 30, but if parliament rejects the Draft the delegates themselves will present it to the Kenyan people for approval or rejection at the referendum.
A few technical problems before we get to the main issues. According to media reports, the Multi-Sectoral Committee has not agreed on the delegates. We don’t know what their problem is and obviously they do not know what the problem of other Kenyans are with their delegate system.
Another thing we are hearing from the media is that Martha Karua told the committee that only the existing 71 districts will be recognized and not the additional 40 or so new districts President Kibaki issued to his supporters during the last referendum. Some Committee members are already on record telling Madame Minister that they will work with their friends in parliament to ensure that the “new” non-existent districts are recognized. Now that is a battle I am going to skip for now, but it tells you how hard things are going to be in parliament.
In terms of the practical logistics there are many problems.
The other day the Chairman of the Electoral Commission of Kenya (ECK) Samuel Kivuitu told Kenyans there is no way we can hold a referendum in September and the hold the General Elections in December of the same year. His contention is that even if the referendum were successful it would take several months to enact the bills necessary to operationalize or what they call the promulgate the new constitution. Kivuitu also cited the expenses likely to be involved which he thought would be unmanageable.
Well Kivuitu got a response to his rather well thought out concerns. Speaking to her constituents in Gichugu, Ms Karua told off Mr. Kivuitu asserting that the government has the money to run both the referendum and the General Elections. She then went ahead to repeat the rather tired excuse that some politicians want to scuttle the constitutional review so as to put the blame on Kibaki. Really?
This is the kind of thing that makes me nervous. Karua should at least know by now that if Kibaki wanted the same constitution he campaigned for in 2000 and 2001 when he was the leader of the opposition instead of demanding the imperial presidency, Kenyans would have a new constitution by now. Also I would have preferred the committee to respond to Kivuitu’s concerns instead of Martha turning them into a campaign item in her constituency.
The real problem here is something that both Kivuitu and Karua missed. We just don’t need two elections in 2007, we need three for the process to work as projected. The Martha Committee has proposed that the delegates to review the constitution be elected between January and April 2007. How are they going to be elected? By mlolongo? Certainly not. This means Kenyans will go to the polls to elect their delegates, meaning we are looking at three elections in one year!!!
What happens if parliament is unable to enact the constitutional review bill by say January/February or God forbid by April of next year? Are we going to have enough time to conduct the delegate elections and resolve any complains or disputes regarding the elections in time to have the delegates ready to do their work and have a new draft constitution by June? The answer is NO. How about M.Ps? Are they going to be allowed to contest positions to be elected delegates or will they be add-ons as was the case at Bomas?
Then we have the unrealistic expectations that the delegates will meet for two months or less, resolve all the contentious issues and draft a new constitution (with the help of drafters) that would be acceptable to Kenyans. The politicians have been unable to resolve the same issues in more than fifteen years when they say one thing today and totally the opposite tomorrow and we expect the delegates, whom I hope are not visitors from Mars, to resolve all these stuff and give us a new constitution in two months.
The simple fact is that the timetable as designed is a recipe for failure and my guess is that once things collapse sometime in June/July next year, the government is going to blame the opposition and call elections without the minimum reforms so they can abuse the system and smuggle themselves back into power and keep playing the same silly games waiting for 2012 which is their stated date for constitutional reforms. By then Kibaki and Karua hope to be out of politics and sitting on the sidelines as Kenyans continue running in cycles. That is their plan, but I have a feeling Kenyans have a completely different plan.
In the meantime the ODM is up in arms threatening to boycott the Karua committee. The ODM don’t seem much concerned about the unworkable timetable but rather about the fact that Karua now wants to block minimum reforms under the pretext there is no more need for half a loaf, since we will soon have the whole loaf if we are “patient”. To ask people who have waited for four years to have a new constitution to be patient is a bit of a stretch for me, but everything is in the hands of Kenyans I am sure the minister will soon know how patient they are prepared to be.
My simple conclusion is that if the Multi-Sectoral Committee wants to be taken seriously by Kenyans, they should do the following:
One, take ownership of the process and stop looking like Martha’s puppets, which I am sure, they aren’t. Reach out to Kenyans to help you negotiate with the politicians instead of having Martha issue orders to us and the leaders of the nation from her constituency.
Two, stop dreaming up unrealistic plans. Present Kenyans with something that can stand basic scrutiny. Constitution making is a political process, not some technocratic hop step and jump that only need the approval of the government. You have to be good negotiators, consult widely and build confidence with the key players, which incidentally includes the masses of the Kenyan people who gave their views on what they want on the new constitution to the CKRC almost a decade ago.
The Committee should let Karua understand that the government has to put all their cards at the negotiating table. Already we have a situation where the committee agrees on one thing and then behind the scenes the government cooks up something different with the help of the usual hired guns and then swings a suprise move on everybody else. Kiraitu tried the same tricks and we know how far that took him. We have to do things differently. By the way must it always be the same lawyer drafting this bills.
www.eastandard.net/hm_news/news.php?articleid=1143960756
Last, but not least, forget the timetable that says we must have the new constitution before the elections. It is unworkable. It doesn’t matter what the politicians think or say about which political party will benefit one way or the other. They have had four years to do it. There is a reason they were not able to and those reasons still exist.
I don’t think President Kibaki or people like Martha Karua have changed their views about the constitution they want. They still talk like it was just a bunch of liars and some Kumbaff politicians who confused Kenyans. I suspect they may try selling us the same rotten eggs in a different package and that really is where the key to solving this constitution riddle lies. You cannot force consensus with a rigid timetable and think everybody will just fold in.
I am one of those who believe we can have a new constitution in a few months if we have the political will like we had when Kibaki and Narc campaigned to give us one in a hundred days. At that time we had a draft constitution that the Narc team and most of the populace agreed on. Everything was ready to go. Then Narc took power and a section of Narc, namely the DP and their allies took the position previously taken by the defeated Kanu party and Kanu took the position originally held by the united opposition under Kibaki. The rest as they say is history.
Today we are practically back to the drawing board. Lets do things properly and have a new constitution within the first year of the next government. (That should be enacted in the Review Law to ensure we are not taken for a ride by ODM or whoever comes to power)
In the meantime Kenyans are going to fight for minimum reforms before the next elections and we will get them even if we have to drag the likes of Martha along screaming and scratching. The Multi Sectoral Committee should focus on the big picture instead of trying to meet the political agenda of the ruling clique. It is an agenda loaded with landmines. Let Kenyans de-mine the landscape while you do your job.
I have always advocated the idea of holding the referendum and the General Elections together, but that was just me a simple kinyangarika. Now that politicians are talking about it, may be we should give the idea a good look. It is not like we have any bright options.
The writer is a human rights activist.
The constitutional thieves in the Kibaki government who have been playing games with Kenyans for the last four years are up with new tricks. This time their tool of choice is something called the Multi Sectoral Committee on Constitutional Review.
This committee was started not long ago when Kibaki and his people were awoken by the loud demands by Kenyans for minimum reforms on the current constitution to provide for a level playing field during the forthcoming General Elections.
At first it looked like the president and his people were willing to work collaboratively with political parties and other interest groups to get the constitutional review process off the ground. Time was running out, considering it has taken almost one year since the government lost it’s attempt to impose a constitution on Kenya and were bounced off at the referendum.
President Kibaki first started with the Kiplagat Committee which told the president what everybody else knew already, namely to engage Kenyans in a meaningful way to resolve the contentious issues through a people driven process.
As usual Kibaki sat on the report until the opposition parties started demanding minimum reforms. The president first responded to these demands quite angrily more or less like he was putting down the usual “pumbavus” who tell, “lies” to Kenyans. His choir picked it up and all of a sudden there was a competition as to who can tell the ODM and others to shut up and forget about minimum reforms.
The process that led to the current Multi Sectoral Committee started fairly reasonably with politicians realizing the constitution is not an agenda for any political party. It is an agenda for the whole nation. Even though it was just the political parties invited at the meeting, civil society groups fought hard and got some representation in the committee increasing the number of participants to forty.
It is still a mystery to me how representatives from the civil society were chosen, but I am willing to give them the benefit of doubt and assume they did everything in their power to be representative instead of picking their cronies and those acceptable to the government.
The trouble with the Mutli-Sectoral Committee is that they seem to be under the complete control of the Minister for Justice and Constitutional Affairs, Martha Karua who announced to Kenyans the other day they have come up with a plan to give Kenyans a new constitution by September 2007. Personally I was excited with the prospect until I read the road map. To call it a joke is to insult jokers. This is a plan specifically designed to fail and I am amazed that the Kenyan media and even members of the committee have not bothered to scrutinize the new constitutional Houdini from Karua and company. This is how it is supposed to work.
First parliament has until Nov. 30 to enact a new constitutional reform law to integrate the process into the current constitutional. Makes you wonder whether the Multi-Sectoral Committee itself is not an illegal entity, but I will spare them that headache for now. The simple fact is that a new constitutional review act should have been in place before the committee was formed.
Now, how on earth does Ms Karua who knows very well how parliament works and members of the committee expect parliament to enact this law in three weeks! That is not going to happen. First someone has to draft the bill and try to do it in a consultative and inclusive way so that it does not become another tag of war in parliament.
The bill should avoid the arrogant “we have the numbers” attitude that characterized the Kiraitu bill that gave birth to the stillborn Wako Mongrel. The Kiraitu bill was passed at midnight after a mediocre three-hour debate in which the government told those opposed to the bill to go to hell. They did and walked out of parliament and there was jubilation and celebration after the “Kiraitu victory” which turned out to be a very short sighted and suicidal maneuvre by the Kibaki government.
Secondly the Karua bill will need two-thirds majority to change Section 47 of the constitution. Kiraitu avoided that route primarily because he did not want a genuine dialogue with those who opposed the bill as presented. The kind of dialogue necessary would have meant changing some aspects of the Bill. Kiraitu told them, ‘Not under my watch” and the rest is history. Martha Karua does not have that luxury and yet hearing her lecture fellow parliamentarians one gets the impression he expects people to follow her orders.
When she announced the new process, the iron lady told the legislators they have until the first week of Dec to come up with the new act. Sounds more like a lecturer reminding her students to submit their final papers by a certain date or else. My sense is that unless they change their tact, this thing of Martha is going to be stuck in parliament for a long time.
The second phase of the road map starts after the new constitutional review act is passed into law. According to the airtight timetable of the Martha Committee that would be between January and April 30 2007. This is the process through which 344 delegates will be elected from the districts and other stake holding groups.
It is these delegates who will then meet, resolve the contentious issues draft a new constitution take it back to parliament and if parliament accepts their draft take it to the referendum by Sep. 30, but if parliament rejects the Draft the delegates themselves will present it to the Kenyan people for approval or rejection at the referendum.
A few technical problems before we get to the main issues. According to media reports, the Multi-Sectoral Committee has not agreed on the delegates. We don’t know what their problem is and obviously they do not know what the problem of other Kenyans are with their delegate system.
Another thing we are hearing from the media is that Martha Karua told the committee that only the existing 71 districts will be recognized and not the additional 40 or so new districts President Kibaki issued to his supporters during the last referendum. Some Committee members are already on record telling Madame Minister that they will work with their friends in parliament to ensure that the “new” non-existent districts are recognized. Now that is a battle I am going to skip for now, but it tells you how hard things are going to be in parliament.
In terms of the practical logistics there are many problems.
The other day the Chairman of the Electoral Commission of Kenya (ECK) Samuel Kivuitu told Kenyans there is no way we can hold a referendum in September and the hold the General Elections in December of the same year. His contention is that even if the referendum were successful it would take several months to enact the bills necessary to operationalize or what they call the promulgate the new constitution. Kivuitu also cited the expenses likely to be involved which he thought would be unmanageable.
Well Kivuitu got a response to his rather well thought out concerns. Speaking to her constituents in Gichugu, Ms Karua told off Mr. Kivuitu asserting that the government has the money to run both the referendum and the General Elections. She then went ahead to repeat the rather tired excuse that some politicians want to scuttle the constitutional review so as to put the blame on Kibaki. Really?
This is the kind of thing that makes me nervous. Karua should at least know by now that if Kibaki wanted the same constitution he campaigned for in 2000 and 2001 when he was the leader of the opposition instead of demanding the imperial presidency, Kenyans would have a new constitution by now. Also I would have preferred the committee to respond to Kivuitu’s concerns instead of Martha turning them into a campaign item in her constituency.
The real problem here is something that both Kivuitu and Karua missed. We just don’t need two elections in 2007, we need three for the process to work as projected. The Martha Committee has proposed that the delegates to review the constitution be elected between January and April 2007. How are they going to be elected? By mlolongo? Certainly not. This means Kenyans will go to the polls to elect their delegates, meaning we are looking at three elections in one year!!!
What happens if parliament is unable to enact the constitutional review bill by say January/February or God forbid by April of next year? Are we going to have enough time to conduct the delegate elections and resolve any complains or disputes regarding the elections in time to have the delegates ready to do their work and have a new draft constitution by June? The answer is NO. How about M.Ps? Are they going to be allowed to contest positions to be elected delegates or will they be add-ons as was the case at Bomas?
Then we have the unrealistic expectations that the delegates will meet for two months or less, resolve all the contentious issues and draft a new constitution (with the help of drafters) that would be acceptable to Kenyans. The politicians have been unable to resolve the same issues in more than fifteen years when they say one thing today and totally the opposite tomorrow and we expect the delegates, whom I hope are not visitors from Mars, to resolve all these stuff and give us a new constitution in two months.
The simple fact is that the timetable as designed is a recipe for failure and my guess is that once things collapse sometime in June/July next year, the government is going to blame the opposition and call elections without the minimum reforms so they can abuse the system and smuggle themselves back into power and keep playing the same silly games waiting for 2012 which is their stated date for constitutional reforms. By then Kibaki and Karua hope to be out of politics and sitting on the sidelines as Kenyans continue running in cycles. That is their plan, but I have a feeling Kenyans have a completely different plan.
In the meantime the ODM is up in arms threatening to boycott the Karua committee. The ODM don’t seem much concerned about the unworkable timetable but rather about the fact that Karua now wants to block minimum reforms under the pretext there is no more need for half a loaf, since we will soon have the whole loaf if we are “patient”. To ask people who have waited for four years to have a new constitution to be patient is a bit of a stretch for me, but everything is in the hands of Kenyans I am sure the minister will soon know how patient they are prepared to be.
My simple conclusion is that if the Multi-Sectoral Committee wants to be taken seriously by Kenyans, they should do the following:
One, take ownership of the process and stop looking like Martha’s puppets, which I am sure, they aren’t. Reach out to Kenyans to help you negotiate with the politicians instead of having Martha issue orders to us and the leaders of the nation from her constituency.
Two, stop dreaming up unrealistic plans. Present Kenyans with something that can stand basic scrutiny. Constitution making is a political process, not some technocratic hop step and jump that only need the approval of the government. You have to be good negotiators, consult widely and build confidence with the key players, which incidentally includes the masses of the Kenyan people who gave their views on what they want on the new constitution to the CKRC almost a decade ago.
The Committee should let Karua understand that the government has to put all their cards at the negotiating table. Already we have a situation where the committee agrees on one thing and then behind the scenes the government cooks up something different with the help of the usual hired guns and then swings a suprise move on everybody else. Kiraitu tried the same tricks and we know how far that took him. We have to do things differently. By the way must it always be the same lawyer drafting this bills.
www.eastandard.net/hm_news/news.php?articleid=1143960756
Last, but not least, forget the timetable that says we must have the new constitution before the elections. It is unworkable. It doesn’t matter what the politicians think or say about which political party will benefit one way or the other. They have had four years to do it. There is a reason they were not able to and those reasons still exist.
I don’t think President Kibaki or people like Martha Karua have changed their views about the constitution they want. They still talk like it was just a bunch of liars and some Kumbaff politicians who confused Kenyans. I suspect they may try selling us the same rotten eggs in a different package and that really is where the key to solving this constitution riddle lies. You cannot force consensus with a rigid timetable and think everybody will just fold in.
I am one of those who believe we can have a new constitution in a few months if we have the political will like we had when Kibaki and Narc campaigned to give us one in a hundred days. At that time we had a draft constitution that the Narc team and most of the populace agreed on. Everything was ready to go. Then Narc took power and a section of Narc, namely the DP and their allies took the position previously taken by the defeated Kanu party and Kanu took the position originally held by the united opposition under Kibaki. The rest as they say is history.
Today we are practically back to the drawing board. Lets do things properly and have a new constitution within the first year of the next government. (That should be enacted in the Review Law to ensure we are not taken for a ride by ODM or whoever comes to power)
In the meantime Kenyans are going to fight for minimum reforms before the next elections and we will get them even if we have to drag the likes of Martha along screaming and scratching. The Multi Sectoral Committee should focus on the big picture instead of trying to meet the political agenda of the ruling clique. It is an agenda loaded with landmines. Let Kenyans de-mine the landscape while you do your job.
I have always advocated the idea of holding the referendum and the General Elections together, but that was just me a simple kinyangarika. Now that politicians are talking about it, may be we should give the idea a good look. It is not like we have any bright options.
The writer is a human rights activist.
