Post by adongo1234 on Aug 27, 2005 5:40:44 GMT 3
A furious “No” Vote awaits Kibaki
By Adongo Ogony
“History shows that intentions are not necessarily important. Those who set in motion historical processes do not control the results.”
Uri Avnery Israeli Peace Activist
The quote above refers to the analysis of Uri Avnery on the Ariel Sharon Gaza pull out which has been dubbed by some as the beginning of the process of the Israeli government to remove their citizens from illegally occupied Palestinian land. Mr. Avnery asserts that Sharon’s intentions have nothing to do with giving Palestinians their land but rather buying time and political mileage to firm up control of the West Bank where more than 400,000 Israeli settlers and counting live on land belonging to the Palestinians. Mr. Avnery’s conclusion is that regardless of Sharon’s intentions the process he has started will acquire a life of its own and that not even Sharon can control what the end result will be.
Looking at the constitutional drama in Kenya and the naked attempt by President Kibaki and his henchmen to rob Wanjiku of the constitution Kenyans have struggled and died for in the last decade and a half one gets the feeling that Kibaki will not live long enough to see the results of what they have started and over which he will have no control despite all the best laid plans. We know Kibaki’s intentions but if I was him, I would be very worried what the results may be. So what really are Kibaki’s intentions?
One is to retain all the powers Moi had and add a little more weight to his position. The nonsense that parliament will check the massive powers of the President in the Kibaki Draft is laughable. Is it the same parliament that passed Kibaki’s baby, the “Kilifi Draft”, at midnight after contribution from three MP’s or are we going to have new MP’s from outer space who can stand up to the president? If parliament today is completely under the thump of President Kibaki and will do anything Kibaki want them to do, how are we to believe that tomorrow that same parliament will sanction the powers of the president?
The best indicator that parliament has no capacity to protect the people against a dictatorial president is what we have seen as the president and his State House operatives hijacked the constitutional review process and have effectively used parliament to complete the robbery against Wanjiku.
The bottom line is that Kibaki is convinced that he will recapture the presidency in 2007 and he and his advisors think between now and 2012 using the massive powers bestowed on his office they can run Kenya like their private kiosk and let the chips fall where they may after 2012. It won’t happen because Kenyans are very much awake and we know we have the capacity to turf out dictators and this time we are not waiting for 24 years. Not even ten.
The important thing to note is that parliament has always had the power to check the powers of the president both during the Kenyatta regime and the Moi regime. Why couldn’t parliament do anything when the presidency then and now has been the champion for grand corruption, abuse of human rights and political repression? Because parliament has always been and will continue to be subservient to the presidency. Even the judiciary as we can see with the actions of the Chief Justice and the bizarre antics of the three judges on the constitutional case against the Kibaki Draft has always been subservient to the whims of the executive and the presidency in particular. More on that later.
What you and I know is that Kenyans asked the CKRC to disburse executive authority so that we put an end to the superman rule. Kenyans have endured the one-man rule for the last 39 years and we have lived with its brutal consequences. President Kibaki and his allies lied to Kenyans while in opposition telling us how horrible it was to have a baba na mama president ruining the country. Today in their new constitution, the president will not only be your baba and mama, he will also be your grandpa and grandma. How wonderful.
Kibaki wants to force down our throats something even more ugly that the previous constitution and he thinks we can help us wash it down with a few goodies thrown in here and there like “Bill of Rights”, “Dual citizenship” and women having the right to inherit land etc.
People like Prof. Kivutha Kibwana have been busy telling us that the president will no longer allocate land and therefore we shouldn’t worry. Well Kibaki doesn’t need to allocate land. Between the Kibaki family, the Kenyatta family, the Moi family and Nyachae they own pretty much half the productive land in Kenya. There is no more land to allocate.
The issue Kenyans wanted addressed is land redistribution and resource allocation to provide opportunities for Kenyans to own the land they work on and not live as squatters in their own land. Which part of the Kibaki constitution addresses that issue? I have read all the 197 pages of it, thanks to the online version from the Standard Newspaper and the part on land is as vague and as useless as the office of the PM.
Yeah women can inherit land and that is good, but someone has to own land before someone else can inherit it. How do we address the dilemma of landlessness when a small group of settler farmers and their offspring as well as the Kenyan ruling elites own immeasurable tracts of land some of which is idle? Kivutha Kibwana knows something about that. He once led a group of squatters in his home base to invade land taken away from them by well-connected political types. Are we going to need more of the same or does our new constitution provide for an orderly redistribution of land- our single most valuable natural resource.
In fact the provision to have wives inherit land from their husbands even if it is not provided for in their husband’s wills is so vague as to be meaningless. It has good intentions, but lets look at a few practical things. What happens where there are more than one widow as is often the case in Kenya? Do they share the land equally? How about spouses not recognized in the “marriage”? How about daughters?
Let me give you a practical example. My father and mother happen to own a pretty good piece of land in Bondo Municipality. I have five sisters and am the only son in the family. When my parents passed away the land was automatically meant to be transferred to me. I live 10,000 kilometres from Bondo. My sisters have practically farmed the land and used it for other purposes for as long as they have been adults. They live in the Bondo Area. Does the new Draft address their right to inherit their parent’s land? No. In fact if I was not around to inherit the land and may be voluntarily pass it over to them, that land would be the property of my father’s brothers, through customary law which has been endorsed by the same Draft.
My point is that the issue of women’s’ right to property and dignity has not been addressed by the Kibaki Draft. There are a few goodies for people like Madame Ngilu to mouth off in the campaign trail but nothing substantial. The mere fact that the proposed Senate which was supposed to give meaningful representation to women and be a forum for Kenyan women to address deep rooted societal biases and discrimination has been scrapped without a well thought out alternative to our womenfolk tells us that the movers and shakers on the Kibaki Draft really don’t give a damn about the plight of Kenyan women. Of course they need their votes, hence the token provision.
First lets get a few things cleared up.
Number one, it is getting pretty clear that the three judges appointed by Chief Justice Evan Gicheru to hear the constitutional case are really not interested in hearing the case. It looks like they are just going through the motions and have probably already made up their minds what the ruling will be. Why do I say this?
First this is the first time in all my life that I have heard a court tell an applicant in a case that they have two hours to present their case. Even in a simple trial of a suspected chicken thief, the courts often let the parties to the case take their time and present their case before the court. The nonsense that the Chief Justice already allocated five days for the case does not wash. What happens if Kiraitu and his hirelings at the CKRC used all the five days to make technical applications? Does the court then make a ruling without hearing the substance of the case?
Here we have a historical case of interest to millions of Kenyans and something that could determine the fate of our beloved country and some judge has the temerity to order the applicants to present their case in two hours “or it will be their funeral”. How can a constitutional case in which there are probably hundreds of precedents to be cited and many constitutional arguments to be made be done in two hours? In fact I will submit that the two hours are not even enough to introduce the tenets of the case to the judges.
To me the arrogant tone of the judges together with their bizarre rulings like barring Orengo from the case clearly indicate that this whole hearing might be a huge waste of time. The other thing is that it seems to me that these judges do not understand the ramifications of their actions should Kenyans come to the conclusion that our courts are still under the thump of the executive. It is a good thing that Kenyans are taking these matters to court than using other avenues. The judges better wake up. They don’t have to rule in favour of the applicants but at least they have to hear the case and stop behaving like King Solomon.
I am very proud of our one of remaining lawyers in the case and a veteran human rights activist Pheroze Nowrojee for refusing to participate in the charade that the judges wanted to turn the hearing into. Nowrojee sat out in dignified silence with the public and left the judges looking stupid and ridiculous not knowing what to do. Looks good on them.
The more serious aspect of the constitutional court proceedings is the behaviour of Justice Evan Gicheru himself. I find it really bothersome that Justice Gicheru very quickly constituted a constitutional court to hear the case filed by the LDP and Kanu while he has been sitting on a similar case filed by the Katiba Watch and others several months ago. Why did it take the noise from politicians and the media for the Chief Justice to act on the LDP/Kanu case while he is still sitting on similar cases? We need to ask Justice Gicheru one question; Are all Kenyans still equal under the law? I raise this issue because it seems Gicheru’s actions are not informed by the law but rather by pressure and instructions fro elsewhere, which cannot be any good for our judiciary and our country.
We removed Benard Chunga from the position of Chief Justice because he proved to be a prisoner of those who appointed him to the post. Is Justice Evan Gicheru another prisoner to those who appointed him? Kenyans and history will ask that question today and tomorrow. We will get the answers from his actions and inactions. The nation is watching.
The other good news from the ongoing case is that now we know that Abdi Ali-Aroni’s CKRC is completely in bed with the fraudsters trying to trash and burn to ashes the aspirations of our people as expressed in the views they gave the CKRC regarding their expectations for a new constitution. Abdi Ali-Aroni and her crew will get their three pence but I doubt they will deliver the heads of 30 million Kenyans to the King and his henchmen.
The mere fact that the CKRC was not content with defending their position in the constitutional case but rather were the ones being used to try to throw out the case on some silly technicality about Orengo using “secret” CKRC info which we all know is public knowledge tells us a whole lot about the CKRC and its current leadership or lack thereof. If the CKRC is for Wanjiku why would they want to throw out a case that will determine if Wanjiku’s interests in the constitutional process have been respected according to the laws of the land? What are they afraid of and whose interests are they serving? Certainly not Wanjiku’s as evidenced in their desperation to have the case thrown out without a hearing.
I challenge the CKRC Chairperson Abdi Ali-Aroni to come forward and tell Kenyans that the ugly piece of work from Wako truly reflects the views Kenyans gave the CKRC as summarized in the CKRC report of 2002. That is her job. That is why we are paying her and her fellow commissioners big bucks. We are not paying the CKRC to go to fight Wanjiku in court. We are paying her to be the protector of Wanjiku after they came to collect our views. By turning around to try to strangle Wanjiku to death, Abdi Ali-Aroni and the CKRC are behaving like the doctor who injects poison into her patients who lie helplessly thinking the good doctor is injecting them with medication to treat their illness. What a scam. History will condemn them for eternity and they will fail miserably.
It is frightening that the CKRC that is clearly working with Kiraitu to circumvent Wanjiku’s wishes in the new constitution is the body charged with carrying out civic education throughout the country. My advice to Abdi Ali-Aroni and the CKRC commissioners is that they should tread very carefully. Once Kenyans are convinced that the CKRC under the leadership of Abdi-Ali-Aroni is another front for the constitutional fraudsters working with a section of the Kenyan political elites they will face the wrath of Kenyans and will be met with a lot of hostility across the land.
In terms of the legal battles against the obviously illegal Kibaki Draft, things are getting pretty messed up. Already the LDP/Kanu case has been postponed to September 20 2005 and God knows what will happen then. There is another piece going back to Chief Justice Gicheru to address the crude and biased behaviour of the judges. Who knows what will happen next? Not me. One thing is sure the well-crafted time-table to the referendum is in complete jeopardy. I expect the LDP/Kanu team to file a case an injunction to stop any activities to do with the Draft until after the matter is resolved. Halafu?
The other nasty contradiction that has been doing the rounds is the obsession with the Kadhi Courts in some quarters. Of all the terrible things in our country the one thing we can take pride in is the fact that we have never had religious confrontations. For some strange reason Christian religious leaders have launched a campaign against the Kadhi courts. I think we need to put a stop to this fabricated religious “conflict”
It is interesting that the noise from a section of the Christian leaders grew so loud freaking out the constitutional swindlers from State House into arranging an urgent meeting with the Christian opinion leaders to clear things up. The reason Kiraitu had to meet these groups is because there is great fear in the Kibaki camp that different Kenyans are going to vote NO to Kibaki and his constitution for different reasons and the one group they are terrified of alienating are the huge Christian population.
The other scary thing is that the opposition to Kibaki’s Katiba on the religious front is coming from all over the country including Kibaki’s home base. Remember this is a constitution, which is going to rely heavily on tribal manipulations, which in itself is a tragedy already. Anything that could rock Kibaki’s support in Central Province and in the large urban centres could spell outright disaster for Kibaki. Hence the quick meeting. Did the meeting work? I doubt it. There are two things to keep in mind.
First I am one of those who have nothing but contempt for the cynical way Kibaki and his team thinks they can lie to us and make a constitution which is the direct opposite of what Kenyans asked for. None-the-less I completely disagree with those who want to oppose the constitution for the non-existent problem of bringing in “Sharia Law”. There is no such thing in any of the drafts. Kadhi courts have been with us for decades and those of us who are not Muslims have not even noticed their existence. All the new Draft will be doing is enshrining them in the constitution. Lets put this issue to rest.
The real issue is that whether one is a Christian or a Muslim the constitution will affect them not just on religious matters, but more significantly in the way the constitution provides for the structures of governing the nation, resource allocation na kadhalika. It will be a great mistake for someone to try telling Christians and Muslims to vote only on the basis of what the constitution says about religion.
Last time I checked Christians just like Muslims need food, they need jobs, they need a government which is not designed to promote personal dictatorship from members of the elite. We all want a democratic Kenya with meaningful devolution of powers so that no one group of a select few can lord it over us for generations the way things have happened under Kenyatta, Moi and Kibaki. Those are the principles upon which Kenyans, whether they are Christians or Muslims have to vote. If the Kibaki constitution wants to perpetuate dictatorship it matters little that it will allow Muslims or Christians to have religious courts under that dictatorship.
At the practical level I doubt that the hurried compromise from Wako where they have provided for so-called religious courts so as to avoid the word “Kadhi” is going to help much. It will not appease the Christian fundamentalists who are already campaigning loudly for a “No” vote. They know the only religious courts likely to be established are the Kadhi courts. The Muslims on the other hand are not going to be too pleased that the government is too terrified to stick to what Kenyans agreed on to have the Kadhi courts provided for constitutionally. It shows a government which has no principles and which will not hesitate to sacrifice the little gains of the Muslim community to appease the Christian majority. So there you go again. Another lose lose situation. What else is new with these Kibaki people?
The thing that has irked many Kenyans is that Amos Wako actually came with the concept of religious courts that nobody ever asked for. There is no such demand in the presentations Kenyans gave the CKRC. There is no mention of religious courts in the Bomas Draft, not even in the Kilifi Document. So the question is who asked Wako for religious courts? Nobody. So why do we have it in the Draft? Now you see why I call the Kibaki Draft “a cut and paste con job”?
The general conclusion is that the Draft has nothing whatsoever to do with what Kenyans told the CKRC when they went all over the country and spent billions of our tax money collecting views from Kenyans.
In terms of the big picture, Kenyans need to ask a few questions. One, why do we have a new office for the Prime Minister and two Deputy PMs who basically have nothing to do? I read the three lines on the duties of the PM and basically it says the person will be Leader of Government Business and perform other duties as assigned by the president. Do Kenyans know what the Leader of Government Business does? Precisely nothing. Ask Moody Awori. He is the current Leader of Government Business and if they didn’t allow him to run the prisons the man would be idle.
President Kibaki is telling Kenyans that he will distribute some of his excessive powers from the right hand to the left hand and we should be happy with that. Instead of exercising all the powers he will allocate some powers to his friend, the PM. The question is who asked for that nonsensical arrangement of power distribution? Certainly not Wanjiku.
In my opinion the “No” vote has a direct and simple message to Kenyans. They should ask Kenyans if the Kibaki Draft truly reflect the views they gave the CKRC. If that is not the case they have to vote No.
Secondly the CKRC should provide to Kenyans at least two primary documents. One is the summary of views Kenyans gave the CKRC that are summarized in the CKRC report of 2002. Nobody so far has disputed that report s a true reflection of the views Kenyans gave the CKRC. Then they should avail the Kibaki Draft. The job of the Kenyan electorate is to audit the views they gave the CKRC against the Kibaki Draft and make a decision. It would be deceptive for the CKRC to just distribute the Kibaki Draft without distributing the summary of views from Kenyans. I know the CKRC does not have the guts nor the leadership to do what is right and that is why I am not asking them to avail the Bomas Draft, which they should have already distributed to the public. The bottom line is that they and their new allies are going to be shocked with the long memory of Kenyans.
In summary the real dilemma for Kibaki is that this referendum is not going to be just about Katiba. It is going to be about what Kibaki and his crew at State House have done in the last three years. Is that fair? Yes it is. Because every failure of the Kibaki regime is epitomized by the fraud they are trying to pull on the constitution.
Let me give you a summary. You remember Kiraitu finally owned up the other day that the war on corruption is a complete flop. Well he tried to backtrack slightly promising that 2005 will be the year of action. We have heard all that before. Just two words. John Githongo. He is not Raila Odinga trying to “take power from Kibaki”. He is not William Ruto trying “protect ill gotten wealth”. Why is Githongo not in office today and why has the president never said a word about his supposed right hand man in the war against corruption? And by the way when are we getting a replacement for Githongo?
The answer to all those questions is because corruption is still thriving in our country and in our government. Our government has no intention of fighting corruption. Do you remember the Goldenberg Inquiry? When is the report going to be released? Nobody knows and nobody cares. Why? Because the whole charade was not set up to fight corruption but rather to give an appearance of fighting corruption. That is what the Kibaki regime has done with everything important to Kenyans. Put up an appearance of doing something and do completely nothing while the same problem continues. That is what they did with the fake “war against corruption” and that is exactly what they are doing with the constitution. Keep the Moi constitution while pretending to change it and Kenyans will buy the trick. Not so first Amigo.
The same thing happened to the Ndungu report on land theft by the mighty and the powerful. Now they are busy arresting and prosecuting priests who want them to implement the Ndungu report How shameful.
Then we had the Truth Justice and Reconciliation Commission. Kiraitu set up the Makau Mutua Committee, which recommended that such a commission be established. We had all the fanfare with the likes of Bishop Tutu gracing the final conference in Nairobi. Big promises and now Kiraitu says it is not possible to set up such a Commission. Of course we know they need the support of some of the abusers to help then smother Wanjiku. What is the message to be learnt? Once again the Kibaki regime made the right noises pretended to do something about a very serious matter of national importance and then dropped the ball for political expedience. Exactly the same thing with Wanjiku’s constitution.
I could go on but my point is that Kenyans have to pass judgment on the Kibaki regime and I for one I am glad we are going to have the referendum to let Kibaki know we have not only read his Draft Constitution and understood it well, but we have also read his actions and inactions as the president who promised to usher a new era but now wants to drag us back to the dark ages of presidential dictatorship. We must reject all lies and deception from the Kibaki regime and there would no better opportunity to do so than the referendum, if and when it comes.
In terms of the big picture I will urge my fellow Kenyans particularly those who like me will invest their energies in the “No” campaign to be civil and avoid insults and personal attacks. We can’t afford it. It is a tragedy as it is that our nation is split right in the middle over something as important as a national constitution.
We are in lose lose situation as a country, thanks to those who have sabotaged the Bomas compromise process. We will build a new momentum for a truly democratic constitution for our country after we defeat the treacherous elements from State House but we must learn to respect the views of other Kenyans however much we may disagree with them.
Our goal is simple. To defeat the lie from State House that the Kibaki constitution has anything to do with Wanjiku. That is all we have to do. I am very proud of the fact that contrary to the wishes of tribal chauvinists who masterminded the fraud against Wanjiku, the opposition to the Kibaki Constitution is coming from every corner of the land and from all the communities that inhabit our great nation. We will win this war but we must respect even those who oppose us vehemently today. They too are Kenyans and they love their country just as much as we do. Never loose sight of that very important fact. We are all Kenyans and we must build our country together as a people with all the richness of our diversity.
The writer is a human rights activist.
By Adongo Ogony
“History shows that intentions are not necessarily important. Those who set in motion historical processes do not control the results.”
Uri Avnery Israeli Peace Activist
The quote above refers to the analysis of Uri Avnery on the Ariel Sharon Gaza pull out which has been dubbed by some as the beginning of the process of the Israeli government to remove their citizens from illegally occupied Palestinian land. Mr. Avnery asserts that Sharon’s intentions have nothing to do with giving Palestinians their land but rather buying time and political mileage to firm up control of the West Bank where more than 400,000 Israeli settlers and counting live on land belonging to the Palestinians. Mr. Avnery’s conclusion is that regardless of Sharon’s intentions the process he has started will acquire a life of its own and that not even Sharon can control what the end result will be.
Looking at the constitutional drama in Kenya and the naked attempt by President Kibaki and his henchmen to rob Wanjiku of the constitution Kenyans have struggled and died for in the last decade and a half one gets the feeling that Kibaki will not live long enough to see the results of what they have started and over which he will have no control despite all the best laid plans. We know Kibaki’s intentions but if I was him, I would be very worried what the results may be. So what really are Kibaki’s intentions?
One is to retain all the powers Moi had and add a little more weight to his position. The nonsense that parliament will check the massive powers of the President in the Kibaki Draft is laughable. Is it the same parliament that passed Kibaki’s baby, the “Kilifi Draft”, at midnight after contribution from three MP’s or are we going to have new MP’s from outer space who can stand up to the president? If parliament today is completely under the thump of President Kibaki and will do anything Kibaki want them to do, how are we to believe that tomorrow that same parliament will sanction the powers of the president?
The best indicator that parliament has no capacity to protect the people against a dictatorial president is what we have seen as the president and his State House operatives hijacked the constitutional review process and have effectively used parliament to complete the robbery against Wanjiku.
The bottom line is that Kibaki is convinced that he will recapture the presidency in 2007 and he and his advisors think between now and 2012 using the massive powers bestowed on his office they can run Kenya like their private kiosk and let the chips fall where they may after 2012. It won’t happen because Kenyans are very much awake and we know we have the capacity to turf out dictators and this time we are not waiting for 24 years. Not even ten.
The important thing to note is that parliament has always had the power to check the powers of the president both during the Kenyatta regime and the Moi regime. Why couldn’t parliament do anything when the presidency then and now has been the champion for grand corruption, abuse of human rights and political repression? Because parliament has always been and will continue to be subservient to the presidency. Even the judiciary as we can see with the actions of the Chief Justice and the bizarre antics of the three judges on the constitutional case against the Kibaki Draft has always been subservient to the whims of the executive and the presidency in particular. More on that later.
What you and I know is that Kenyans asked the CKRC to disburse executive authority so that we put an end to the superman rule. Kenyans have endured the one-man rule for the last 39 years and we have lived with its brutal consequences. President Kibaki and his allies lied to Kenyans while in opposition telling us how horrible it was to have a baba na mama president ruining the country. Today in their new constitution, the president will not only be your baba and mama, he will also be your grandpa and grandma. How wonderful.
Kibaki wants to force down our throats something even more ugly that the previous constitution and he thinks we can help us wash it down with a few goodies thrown in here and there like “Bill of Rights”, “Dual citizenship” and women having the right to inherit land etc.
People like Prof. Kivutha Kibwana have been busy telling us that the president will no longer allocate land and therefore we shouldn’t worry. Well Kibaki doesn’t need to allocate land. Between the Kibaki family, the Kenyatta family, the Moi family and Nyachae they own pretty much half the productive land in Kenya. There is no more land to allocate.
The issue Kenyans wanted addressed is land redistribution and resource allocation to provide opportunities for Kenyans to own the land they work on and not live as squatters in their own land. Which part of the Kibaki constitution addresses that issue? I have read all the 197 pages of it, thanks to the online version from the Standard Newspaper and the part on land is as vague and as useless as the office of the PM.
Yeah women can inherit land and that is good, but someone has to own land before someone else can inherit it. How do we address the dilemma of landlessness when a small group of settler farmers and their offspring as well as the Kenyan ruling elites own immeasurable tracts of land some of which is idle? Kivutha Kibwana knows something about that. He once led a group of squatters in his home base to invade land taken away from them by well-connected political types. Are we going to need more of the same or does our new constitution provide for an orderly redistribution of land- our single most valuable natural resource.
In fact the provision to have wives inherit land from their husbands even if it is not provided for in their husband’s wills is so vague as to be meaningless. It has good intentions, but lets look at a few practical things. What happens where there are more than one widow as is often the case in Kenya? Do they share the land equally? How about spouses not recognized in the “marriage”? How about daughters?
Let me give you a practical example. My father and mother happen to own a pretty good piece of land in Bondo Municipality. I have five sisters and am the only son in the family. When my parents passed away the land was automatically meant to be transferred to me. I live 10,000 kilometres from Bondo. My sisters have practically farmed the land and used it for other purposes for as long as they have been adults. They live in the Bondo Area. Does the new Draft address their right to inherit their parent’s land? No. In fact if I was not around to inherit the land and may be voluntarily pass it over to them, that land would be the property of my father’s brothers, through customary law which has been endorsed by the same Draft.
My point is that the issue of women’s’ right to property and dignity has not been addressed by the Kibaki Draft. There are a few goodies for people like Madame Ngilu to mouth off in the campaign trail but nothing substantial. The mere fact that the proposed Senate which was supposed to give meaningful representation to women and be a forum for Kenyan women to address deep rooted societal biases and discrimination has been scrapped without a well thought out alternative to our womenfolk tells us that the movers and shakers on the Kibaki Draft really don’t give a damn about the plight of Kenyan women. Of course they need their votes, hence the token provision.
First lets get a few things cleared up.
Number one, it is getting pretty clear that the three judges appointed by Chief Justice Evan Gicheru to hear the constitutional case are really not interested in hearing the case. It looks like they are just going through the motions and have probably already made up their minds what the ruling will be. Why do I say this?
First this is the first time in all my life that I have heard a court tell an applicant in a case that they have two hours to present their case. Even in a simple trial of a suspected chicken thief, the courts often let the parties to the case take their time and present their case before the court. The nonsense that the Chief Justice already allocated five days for the case does not wash. What happens if Kiraitu and his hirelings at the CKRC used all the five days to make technical applications? Does the court then make a ruling without hearing the substance of the case?
Here we have a historical case of interest to millions of Kenyans and something that could determine the fate of our beloved country and some judge has the temerity to order the applicants to present their case in two hours “or it will be their funeral”. How can a constitutional case in which there are probably hundreds of precedents to be cited and many constitutional arguments to be made be done in two hours? In fact I will submit that the two hours are not even enough to introduce the tenets of the case to the judges.
To me the arrogant tone of the judges together with their bizarre rulings like barring Orengo from the case clearly indicate that this whole hearing might be a huge waste of time. The other thing is that it seems to me that these judges do not understand the ramifications of their actions should Kenyans come to the conclusion that our courts are still under the thump of the executive. It is a good thing that Kenyans are taking these matters to court than using other avenues. The judges better wake up. They don’t have to rule in favour of the applicants but at least they have to hear the case and stop behaving like King Solomon.
I am very proud of our one of remaining lawyers in the case and a veteran human rights activist Pheroze Nowrojee for refusing to participate in the charade that the judges wanted to turn the hearing into. Nowrojee sat out in dignified silence with the public and left the judges looking stupid and ridiculous not knowing what to do. Looks good on them.
The more serious aspect of the constitutional court proceedings is the behaviour of Justice Evan Gicheru himself. I find it really bothersome that Justice Gicheru very quickly constituted a constitutional court to hear the case filed by the LDP and Kanu while he has been sitting on a similar case filed by the Katiba Watch and others several months ago. Why did it take the noise from politicians and the media for the Chief Justice to act on the LDP/Kanu case while he is still sitting on similar cases? We need to ask Justice Gicheru one question; Are all Kenyans still equal under the law? I raise this issue because it seems Gicheru’s actions are not informed by the law but rather by pressure and instructions fro elsewhere, which cannot be any good for our judiciary and our country.
We removed Benard Chunga from the position of Chief Justice because he proved to be a prisoner of those who appointed him to the post. Is Justice Evan Gicheru another prisoner to those who appointed him? Kenyans and history will ask that question today and tomorrow. We will get the answers from his actions and inactions. The nation is watching.
The other good news from the ongoing case is that now we know that Abdi Ali-Aroni’s CKRC is completely in bed with the fraudsters trying to trash and burn to ashes the aspirations of our people as expressed in the views they gave the CKRC regarding their expectations for a new constitution. Abdi Ali-Aroni and her crew will get their three pence but I doubt they will deliver the heads of 30 million Kenyans to the King and his henchmen.
The mere fact that the CKRC was not content with defending their position in the constitutional case but rather were the ones being used to try to throw out the case on some silly technicality about Orengo using “secret” CKRC info which we all know is public knowledge tells us a whole lot about the CKRC and its current leadership or lack thereof. If the CKRC is for Wanjiku why would they want to throw out a case that will determine if Wanjiku’s interests in the constitutional process have been respected according to the laws of the land? What are they afraid of and whose interests are they serving? Certainly not Wanjiku’s as evidenced in their desperation to have the case thrown out without a hearing.
I challenge the CKRC Chairperson Abdi Ali-Aroni to come forward and tell Kenyans that the ugly piece of work from Wako truly reflects the views Kenyans gave the CKRC as summarized in the CKRC report of 2002. That is her job. That is why we are paying her and her fellow commissioners big bucks. We are not paying the CKRC to go to fight Wanjiku in court. We are paying her to be the protector of Wanjiku after they came to collect our views. By turning around to try to strangle Wanjiku to death, Abdi Ali-Aroni and the CKRC are behaving like the doctor who injects poison into her patients who lie helplessly thinking the good doctor is injecting them with medication to treat their illness. What a scam. History will condemn them for eternity and they will fail miserably.
It is frightening that the CKRC that is clearly working with Kiraitu to circumvent Wanjiku’s wishes in the new constitution is the body charged with carrying out civic education throughout the country. My advice to Abdi Ali-Aroni and the CKRC commissioners is that they should tread very carefully. Once Kenyans are convinced that the CKRC under the leadership of Abdi-Ali-Aroni is another front for the constitutional fraudsters working with a section of the Kenyan political elites they will face the wrath of Kenyans and will be met with a lot of hostility across the land.
In terms of the legal battles against the obviously illegal Kibaki Draft, things are getting pretty messed up. Already the LDP/Kanu case has been postponed to September 20 2005 and God knows what will happen then. There is another piece going back to Chief Justice Gicheru to address the crude and biased behaviour of the judges. Who knows what will happen next? Not me. One thing is sure the well-crafted time-table to the referendum is in complete jeopardy. I expect the LDP/Kanu team to file a case an injunction to stop any activities to do with the Draft until after the matter is resolved. Halafu?
The other nasty contradiction that has been doing the rounds is the obsession with the Kadhi Courts in some quarters. Of all the terrible things in our country the one thing we can take pride in is the fact that we have never had religious confrontations. For some strange reason Christian religious leaders have launched a campaign against the Kadhi courts. I think we need to put a stop to this fabricated religious “conflict”
It is interesting that the noise from a section of the Christian leaders grew so loud freaking out the constitutional swindlers from State House into arranging an urgent meeting with the Christian opinion leaders to clear things up. The reason Kiraitu had to meet these groups is because there is great fear in the Kibaki camp that different Kenyans are going to vote NO to Kibaki and his constitution for different reasons and the one group they are terrified of alienating are the huge Christian population.
The other scary thing is that the opposition to Kibaki’s Katiba on the religious front is coming from all over the country including Kibaki’s home base. Remember this is a constitution, which is going to rely heavily on tribal manipulations, which in itself is a tragedy already. Anything that could rock Kibaki’s support in Central Province and in the large urban centres could spell outright disaster for Kibaki. Hence the quick meeting. Did the meeting work? I doubt it. There are two things to keep in mind.
First I am one of those who have nothing but contempt for the cynical way Kibaki and his team thinks they can lie to us and make a constitution which is the direct opposite of what Kenyans asked for. None-the-less I completely disagree with those who want to oppose the constitution for the non-existent problem of bringing in “Sharia Law”. There is no such thing in any of the drafts. Kadhi courts have been with us for decades and those of us who are not Muslims have not even noticed their existence. All the new Draft will be doing is enshrining them in the constitution. Lets put this issue to rest.
The real issue is that whether one is a Christian or a Muslim the constitution will affect them not just on religious matters, but more significantly in the way the constitution provides for the structures of governing the nation, resource allocation na kadhalika. It will be a great mistake for someone to try telling Christians and Muslims to vote only on the basis of what the constitution says about religion.
Last time I checked Christians just like Muslims need food, they need jobs, they need a government which is not designed to promote personal dictatorship from members of the elite. We all want a democratic Kenya with meaningful devolution of powers so that no one group of a select few can lord it over us for generations the way things have happened under Kenyatta, Moi and Kibaki. Those are the principles upon which Kenyans, whether they are Christians or Muslims have to vote. If the Kibaki constitution wants to perpetuate dictatorship it matters little that it will allow Muslims or Christians to have religious courts under that dictatorship.
At the practical level I doubt that the hurried compromise from Wako where they have provided for so-called religious courts so as to avoid the word “Kadhi” is going to help much. It will not appease the Christian fundamentalists who are already campaigning loudly for a “No” vote. They know the only religious courts likely to be established are the Kadhi courts. The Muslims on the other hand are not going to be too pleased that the government is too terrified to stick to what Kenyans agreed on to have the Kadhi courts provided for constitutionally. It shows a government which has no principles and which will not hesitate to sacrifice the little gains of the Muslim community to appease the Christian majority. So there you go again. Another lose lose situation. What else is new with these Kibaki people?
The thing that has irked many Kenyans is that Amos Wako actually came with the concept of religious courts that nobody ever asked for. There is no such demand in the presentations Kenyans gave the CKRC. There is no mention of religious courts in the Bomas Draft, not even in the Kilifi Document. So the question is who asked Wako for religious courts? Nobody. So why do we have it in the Draft? Now you see why I call the Kibaki Draft “a cut and paste con job”?
The general conclusion is that the Draft has nothing whatsoever to do with what Kenyans told the CKRC when they went all over the country and spent billions of our tax money collecting views from Kenyans.
In terms of the big picture, Kenyans need to ask a few questions. One, why do we have a new office for the Prime Minister and two Deputy PMs who basically have nothing to do? I read the three lines on the duties of the PM and basically it says the person will be Leader of Government Business and perform other duties as assigned by the president. Do Kenyans know what the Leader of Government Business does? Precisely nothing. Ask Moody Awori. He is the current Leader of Government Business and if they didn’t allow him to run the prisons the man would be idle.
President Kibaki is telling Kenyans that he will distribute some of his excessive powers from the right hand to the left hand and we should be happy with that. Instead of exercising all the powers he will allocate some powers to his friend, the PM. The question is who asked for that nonsensical arrangement of power distribution? Certainly not Wanjiku.
In my opinion the “No” vote has a direct and simple message to Kenyans. They should ask Kenyans if the Kibaki Draft truly reflect the views they gave the CKRC. If that is not the case they have to vote No.
Secondly the CKRC should provide to Kenyans at least two primary documents. One is the summary of views Kenyans gave the CKRC that are summarized in the CKRC report of 2002. Nobody so far has disputed that report s a true reflection of the views Kenyans gave the CKRC. Then they should avail the Kibaki Draft. The job of the Kenyan electorate is to audit the views they gave the CKRC against the Kibaki Draft and make a decision. It would be deceptive for the CKRC to just distribute the Kibaki Draft without distributing the summary of views from Kenyans. I know the CKRC does not have the guts nor the leadership to do what is right and that is why I am not asking them to avail the Bomas Draft, which they should have already distributed to the public. The bottom line is that they and their new allies are going to be shocked with the long memory of Kenyans.
In summary the real dilemma for Kibaki is that this referendum is not going to be just about Katiba. It is going to be about what Kibaki and his crew at State House have done in the last three years. Is that fair? Yes it is. Because every failure of the Kibaki regime is epitomized by the fraud they are trying to pull on the constitution.
Let me give you a summary. You remember Kiraitu finally owned up the other day that the war on corruption is a complete flop. Well he tried to backtrack slightly promising that 2005 will be the year of action. We have heard all that before. Just two words. John Githongo. He is not Raila Odinga trying to “take power from Kibaki”. He is not William Ruto trying “protect ill gotten wealth”. Why is Githongo not in office today and why has the president never said a word about his supposed right hand man in the war against corruption? And by the way when are we getting a replacement for Githongo?
The answer to all those questions is because corruption is still thriving in our country and in our government. Our government has no intention of fighting corruption. Do you remember the Goldenberg Inquiry? When is the report going to be released? Nobody knows and nobody cares. Why? Because the whole charade was not set up to fight corruption but rather to give an appearance of fighting corruption. That is what the Kibaki regime has done with everything important to Kenyans. Put up an appearance of doing something and do completely nothing while the same problem continues. That is what they did with the fake “war against corruption” and that is exactly what they are doing with the constitution. Keep the Moi constitution while pretending to change it and Kenyans will buy the trick. Not so first Amigo.
The same thing happened to the Ndungu report on land theft by the mighty and the powerful. Now they are busy arresting and prosecuting priests who want them to implement the Ndungu report How shameful.
Then we had the Truth Justice and Reconciliation Commission. Kiraitu set up the Makau Mutua Committee, which recommended that such a commission be established. We had all the fanfare with the likes of Bishop Tutu gracing the final conference in Nairobi. Big promises and now Kiraitu says it is not possible to set up such a Commission. Of course we know they need the support of some of the abusers to help then smother Wanjiku. What is the message to be learnt? Once again the Kibaki regime made the right noises pretended to do something about a very serious matter of national importance and then dropped the ball for political expedience. Exactly the same thing with Wanjiku’s constitution.
I could go on but my point is that Kenyans have to pass judgment on the Kibaki regime and I for one I am glad we are going to have the referendum to let Kibaki know we have not only read his Draft Constitution and understood it well, but we have also read his actions and inactions as the president who promised to usher a new era but now wants to drag us back to the dark ages of presidential dictatorship. We must reject all lies and deception from the Kibaki regime and there would no better opportunity to do so than the referendum, if and when it comes.
In terms of the big picture I will urge my fellow Kenyans particularly those who like me will invest their energies in the “No” campaign to be civil and avoid insults and personal attacks. We can’t afford it. It is a tragedy as it is that our nation is split right in the middle over something as important as a national constitution.
We are in lose lose situation as a country, thanks to those who have sabotaged the Bomas compromise process. We will build a new momentum for a truly democratic constitution for our country after we defeat the treacherous elements from State House but we must learn to respect the views of other Kenyans however much we may disagree with them.
Our goal is simple. To defeat the lie from State House that the Kibaki constitution has anything to do with Wanjiku. That is all we have to do. I am very proud of the fact that contrary to the wishes of tribal chauvinists who masterminded the fraud against Wanjiku, the opposition to the Kibaki Constitution is coming from every corner of the land and from all the communities that inhabit our great nation. We will win this war but we must respect even those who oppose us vehemently today. They too are Kenyans and they love their country just as much as we do. Never loose sight of that very important fact. We are all Kenyans and we must build our country together as a people with all the richness of our diversity.
The writer is a human rights activist.
