While the coalition principals have cultivated a public image assuring Kenyans of their unwavering support for the new Constitution by June next year, their lead advisors on constitution making have been engaged in shadow-boxing that has the potential of breaking out into a fully-fledged bare-knuckle bout.
In what appears to have the resemblance of the political differences played out at the Bomas Constitutional Conference in 2005, the demons are warming up to haunt the process again.
The Committee of Experts (CoE) that includes local and international experts is now being accused of promoting partisan interests and recruiting staff of certain political inclination by President Kibakis advisor on Constitutional Review Prof Kivutha Kibwana. Kibwana and the PMs adviser on Coalition Affairs Miguna Miguna have been fighting on how the new Constitution process should work and what system of Government the country should adopt.
Kibwana and Miguna are lawyers and serve as joint secretaries in the Permanent Committee on the Management of Grand Coalition Affairs.
At the core of the differences between ODM and PNU is the Executive. The two offices are sparring on whether to have a presidential or parliamentary system of Government.
Some key differences are in familiar scripts of the legislature, devolution of powers and transitional clauses, which were identified by the Committee of Experts on Constitution Review (CoE) as contentious issues.
Contents of the harsh war of words between Kibwana and Miguna contained in the correspondence circulated to the CoE on Constitution review and copied to the Speaker of the National Assembly Kenneth Marende only point to silent wars, which if left unchecked could derail the process.
Kibwanas letter seen by The Standard was addressed to the CoE Chairman Nzamba Kitonga and copied to the chairman of Parliamentary select committee on Legal Affairs Administration Justice and Constitution Review Mr Abdikadir Hussein and Justice Minister Mutula Kilonzo.
Kibwana accuses the CoE of “engaging in token consultation which will seriously undermine or even scatter the constitution making process”.
The letter reads: “Issues of contention must be properly handled CoE must not rush the constitution making process.”
The strongly worded letter accuses the CoE of working for political interests of some powerful individuals, bringing to the fore the same kind of accusations that scuttled Kenyas most serious attempt at reviewing the Constitution in 2005.
“CoE is making irrational decisions before concluding consultations it can only be safely concluded that the bulk of CoE membership is working at behest of certain forces,” Kibwana says.
But in a quick reaction, Miguna writes to Kibwana accusing him of creating diversionary tactics and artificial roadblocks that may fatally imperil the work of CoE.
Sources said the PNU wing of coalition did not present a written memoranda on issues they felt need to be deliberated on by CoE even after advertisements and deadlines set by the experts.
Said Miguna in his letter: “The issues you have raised should have been brought to the attention of CoE during technical consultations forum on the contentious issues in June.”
He goes on, “Both of us attended and actively participated during those deliberations. I note, however, you only attended partially one such session.”
Miguna tells Kibwana: “Your critique is an attempt to intimidate coerce, unduly influence or control how CoE discharges their mandate.”
He adds, “It is imperative to exercise our discretions responsibly and in a productive manner. We cannot afford to politicise the work of CoE.”
Kibwana had challenged CoE to develop and publicise a decision making protocol so Kenyans know who will make decisions, under what mandate and with what consequences in the entire Constitution making process.
But Miguna responds: “I am puzzled by your assertions that you are unaware of the decision making protocol. Are you not Kenyan? Havent you participated in this process this far? Who are the Kenyans you purport to advocate on behalf of? When did they appoint you their representative or advocate? Is not a conflict of interest for you to purport to speak for unidentified Kenyans yet you work for executive arm of the Government specifically President Kibaki and the PNU that you represent at the Permanent Committee on the Management of Coalition Affairs?”
In the letters Kibwana argues, “I suspect that if CoE goes out of its way to consult broadly, even when the review law does not strictly require it, Kenyans will be persuaded that CoE is preparing their constitution and not the constitution of CoE or other parties and groups associated with it.”
Kibwana accuses CoE of failing to disclose non-contentious issues, minor contentious issues and major ones. He lists some of the issues as impunity, the land question, Kadhis courts and the one person, one vote principle and the equality of electoral units principle.
Miguna, however, defends the CoE and accuses Kibwana of cowardice by attacking the experts.
“You were present during the proceedings in which majority of participants supported, with cogent reasons, the parliamentary system and opposed the presidential. An overwhelming majority supported the same system at the Bomas constitutional conference.”
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