FolksThis is the updated version of the discussion piece. I deleted the original by mistake and I don't know how to get it back to the top of the discussion chain. OO can you help? And while you are at it, can we get our original referendum orange colours. That was gourgeous. I hope nobody is going to complain since Juks has been green for the last year or so. I guess it is the rotational leadership. But I digress.
By Adongo Ogony
The government side got its feet into the minimum reform platform when they selected a team to spearhead the talks. The mere fact that the so-called GNU overcame divisions to finally name a team is a step in the right direction.
However there are a whole bunch of relatively minor things that are going to bog the whole process down and even derail it if we do not address them now.
Let's start with the obvious. First, we have the numbers game. It is strange the government chose 12 representatives plus two ex-officio members while asking the opposition to name 10 representatives. Isn't that unfair? Why does the government need an imbalance in representation at the talks?
It would appear that the government has no faith in fruitful negotiations and wants to create a situation where when it comes to voting for the resolutions they will have an advantage. That is a wrong way to start things for two reasons.
One, it brings bad faith back to play. We do not need Mr. Bad Faith. He has not been very useful to the constitutional reform process. Let's banish him from this minimum reforms process. The way to do that is to have equity in representation.
The second element of this imbalance is that it creates the impression that someone is still bent on manipulating the system. That is another guy we don't need. Mr. Manipulation is no good for us. Banish him too. Let's just have a simple formula of equal representation. That always works.
The other item being thrown all over the place is the proposal by the Justice and Legal Affairs Committee for the presidential candidate to win 50% plus votes or face run-off elections. Kibaki's backers both in the GNU and in the media have been all daggers about this proposal claiming it will allow the ODM not to worry too much about unity in their party since they can field two candidates and then support one at the run-offs. I find this argument nonsensical.
Strangely enough the same people hanging on to this 50% argument keep telling Kenyans the reforms have to be good for the country not for politicians. If the 50% majority win is good for Kenya, which it is, then why is one group opposing it? Isn’t that the height of hypocrisy? They are telling us they want what is good for the country, but if something is good for the country and allegedly bad for them then Kenyans have to wait until it is good for them. May be that will be when they are in opposition next year. Please give us a break.
It is not just Kibaki being asked to get 50% plus votes; his opponents have to achieve the same feat. If Kibaki and his supporters are convinced he cannot win 50% plus votes, why the heck would he want to be the president. It is not like the proposal is just for Kibaki to get 50% plus and the opposition can win with 40%. Everybody who wants to be the president will face the same rule. Why are some people scared?
In my view the opposition to this proposal which seems to be one of the big issues for Kibaki's supporters actually betrays the fear by the Kibaki team to face Kenyans and win a democratic election, fair and square.
It also exposes the fact that the main strategy for Kibaki and his team is the long awaited break up of the ODM. I think it is wrong to deny Kenyans the right to ensure that our president has majority vote just because the Kibaki people don't know what to do with ODM Kenya. Let the two groups sort out their problems without putting vetos on how Kenyans elect their president.
The 50% plus requirement was in both the Bomas Draft and the Wako Draft and nobody complained. The origin of this proposal is the fiasco of 1992 General Elections when the then incumbent, President Moi, won the elections with less than 40% vote. Many Kenyans felt cheated and recommended that in order to have a popularly elected president for the republic we need the president to win over 50% votes. This proposal was intended to enhance our democracy.
From the fore going it is obvious the proposal was made long before something called the ODM came into existence. It is unfair to kill it just because the government does not know what to do with ODM.
The time for General Elections is with us and unfortunately we were unable to bring in the new constitution which would have had this requirement. Why should we not have the proposal enacted into law if we really want free and fair elections?
The other big issue for me is the move by Kibaki's GNU to cut loose the civil society representatives. The VP Moody Awori, argued they want the parliamentarians to sort out the big issues first before they bring the civil society.
First off, it is interesting that the same Kibaki people who brought in a big contingent of civil society representation to the MSF to smother the opposition is now saying they don't need them anymore. The bigger issue for me is this idea that Kibaki and his people think the civil society people are mere add-ons after the wanasiasa have made the big decisions.
There are a couple of things to address here. Number one, the ODM formula of working hands in gloves with the civil society groups is the right thing to do. This is about the constitution and the politicians do not have the monopoly of wisdom on the matter as we all know very well.
Secondly, if we are going to have civil society representation, which is very important for the credibility of the process, then we need them to participate right from the beginning instead of making them wall papers after the fact.
My suggestion is that we go with the Muungano Wa Katiba formula. The Kibaki team of 12 should add on four civil society reps. I mean they always have Mutava Musyimi. Why not go to him now. In the same vein the ODM should also nominate four reps from the civil society and take off two politicians from their list. To me a team of 32 with 8 representatives from the civil society would be a good starting point.
Alternatively the civil society groups can elect their own 8 or so reps to join the talks. This is probably a more workable formula. Whatever we do, we need civil society reps in the mix right off the bat.
From Awori’s statement one gets the impression that the decision to leave out the civil society groups was meant to recreate something close to the IPPG formula of 1997. There is a big difference that people like Awori don’t seem to grasp. The IPPG of 1997 was specifically designed to cut down the civil society groups to size and isolate them. One would want to suppose that is not the government’s objective in 2007. In fact there is no reason for that. The civil society is not putting any pressure on the government, if anything a good section has been very government friendly. Why would we want to isolate them now?
On the other side, I think the ODM leaders need to set their priorities right. I was disturbed with statements to the effect that the ODM will not participate in the dialogue with the Kibaki team unless Kibaki reverses his earlier decision to load up the ECK with the so-called government friendly commissioners. What Kibaki did was wrong and he has been universally condemned for his reckless action. In fact it was Kibaki’s arrogant attitude as reflected in his ECK moves that brought opposition groups together and solidified the resolve to fight for minimum reforms.
My understanding is that the composition, structure and functioning of the ECK is one of the items in the minimum reform package. Why then should the ODM be pushing for Kibaki to reverse his decision? Why not discuss the membership to ECK as part of the ECK reforms needed for free and fair elections and then ensure that everything that is agreed upon is implemented immediately.
Besides, while it is important that the president does not just appoint his friends and sympathizers to ECK, there are even bigger problems in the ECK. The fiasco in the Kisauni by-election for example, has exposed cases where ECK officials changed numbers and basically helped to rig the elections. Why is the law silent on punishing officials who rig elections?
As expected the stand up comedians are already at work. It was amusing to hear the likes of Kalembe Ndile already discussing the reforms in parliament even before the talks have began. Next they will take the show to the villages and before you know it there will be rallies telling us how Raila wants to snatch power from the back door yada yada. My answer to them is we don’t care. Just give us our Katiba and get out of the way. Kenyans are too smart to take these clowns seriously. It is going to be show time. Again.
The writer is a human rights activist
