Referendum on new constitution likely to yield to political whims and ethnicity Discordant views by advisers of the two Coalition principals threaten to take the country back to square one of the process, and the enthusiasm that greeted the establishment of the Committee of Experts on Constitutional Review seems to have ebbed away.
Prime Minister Raila Odingas adviser Miguna Miguna, and his equal in President Mwai Kibakis camp Kivutha Kibwana, are yet to agree on the rationale use to appoint senior members of the CoE, and the discord has stretched to the basis of the committees assertion that the country needs a parliamentary system of governance.
Prof Kibwana accuses the CoE, which comprises local and international experts, of promoting partisan interests, while Mr Miguna charges that the committee is dominated by people of a certain political inclination.
The two, who are lawyers, serve as joint secretaries in the Permanent Committee on the Management of Grand Coalition Affairs.
At this rate, experts say, chances of Kenya getting a new constitution are very slim. However, it is not the wrangles within the Coalition that have commentators worried most, but the referendum waiting ahead.
The argument that a draft constitution be subjected to a referendum as happened in 2005 has been received with mixed feelings, and there is a growing view that taking the document to a politically-charged electorate for endorsement or rejection is ill-advised.
Committed to process
Among those who subscribe to this point of view are the CoEs chairman, Mr Nzamba Kitonga; the minister for Justice, National Cohesion and Constitutional Affairs, Mr Mutula Kilonzo; and the man credited with steering the process right from its infancy, Prof Yash Pal Ghai.
The political adviser at Steadman Synovate, Mr Tom Wolf, this week told the Saturday Nation politicians should be committed to guiding the process to its logical conclusion.
If they use the process to settle their differences, it will be another lost chance, said Mr Wolf.
His views were echoed by the head of the Department of Public Law at the University of Nairobi, Dr Kindiki Kithure, and Nairobi lawyer Kamotho Waiganjo, both of the view that a referendum would be the Coalitions biggest litmus test yet. Mr Kitonga revealed he had fears about the referendum even before his appointment to chair the Committee of Experts.
I think it would divide Kenyans. I held this feeling even when I chaired the Constitution sub-Committee at the Law Society of Kenya. And as we negotiated the Act that led to the initiation of the process, I expressed similar fears, he said.
Parliament, for some reason, seems to believe that the only way a new constitution can be legitimised is through a referendum, but legal experts disagree.
Lawyers we talked to gave two other ways through which this could be achieved: adoption of the document by Parliament, or a constitution assembly.
Delete clause
Mr Kitonga said he hoped that Parliament would amend the appropriate law and delete the clause that advises that the proposed new constitution must be subjected to a referendum.
But, in case that does not happen, I hope that, in view of the recent post-election violence, Kenyans will be more responsible and shun ethnic divisions.
Dr Kithure was categorical that failure to amend the law limited Kenyas chances to acquire a new constitution.
It will be a surprise to get one unless there is political and ethnical compromise as a result of the myriad problems the country is facing, he said, adding that the constitutional review could easily be manipulated by politicians, who were wont to raise political temperatures for personal gains.
Unresolved issues
The Interim Independent Electoral Commission chairman, Mr Ahmed Issack Hassan, while agreeing that a referendum may scuttle the whole process, said there were too many unresolved issues that may be used against the new document.
These, he said, include the fate of internally displaced persons and that of post-election violence perpetrators.
I can guarantee that the turnout will not be as enthusiastic as we would like it to be, but there are Kenyans who will vote nevertheless, said Mr Hassan.
Prof Ghai warned that in a multi-ethnic society with low education levels like Kenyas, there is always a risk in having a referendum.
Not everybody will understand the issues being discussed. And, as usual, politicians might capitalise and use the process to sort out their own issues, which might lead to a rejection of the document by the public, he said.
Referendums as used elsewhere, Prof Ghai said, were necessary where the constitution making process had not been participatory.
He said parties that felt aggrieved during the process which is a compromise of differences from interested groups could poison peoples minds to reject the final document.
Kadhis courts
He gave the example of the kadhis courts, which some people believe should not be included in the Constitution. If Kenyans were asked to approve a document endorsing these courts, he said, fundamentalist Christians could oppose it.
In my view, it will be better not to have a referendum. We could reconcile any emerging differences amicably and have Parliament adopt the new constitution, Prof Ghai said.
Mr Waiganjo warned that if the political class did not agree on the final document, it would be irresponsible to ask Kenyans to decide on it.
People will not vote on the basis of the constitution but on political preferences. Similarly, the current tensions are unnecessary, coming so soon after the 2007 General Election. That might also contribute to giving us a wrong constitution, or losing us a good one, he said.
However, Mr Waiganjo pointed out that a referendum was essential because it gave the public a sense of ownership of the document, but only if it did not become a forum for political brinkmanship and competition.
Justice minister Mutula Kilonzo has promised to advise the government, and the country by extension, that a referendum was simply not acceptable.
Mr Kilonzo was among the team that led the No (Orange) campaign against the draft referendum in 2005, then under the aegis of the Orange Democratic Movement.
Guide process
The minister has already tasked the Law Reform Commission, the Kenya National Commission on Human Rights, the International Commission of Jurists and the Law Society of Kenya to devise a referendum law to guide the process.
The law, the minister says, should spell out issues that can be taken to the referendum.
With such a law in place, petty issues like incitement, tribalism and hate speech would be stopped. Similarly, Parliament should ensure little or no opposition to the final document.
Kenyans need an opportunity to retire the old Constitution and operationalise a new one. That is their inherent right.
On the kadhis courts, Mr Kilonzo said that, as a line minister, he could not take sides, and promised to leave the final judgment to the Committee of Experts even as he worked to mend the current divisions.
Among the issues the minister will have to deal with so that they do not inform the decisions of the electorate in case the constitution is taken to the referendum are the emotive issue of the Mau Forest and the trying of perpetrators of the post-election violence that rocked the country after the 2007 polls.
Errant politicians
However, Dr Kithure warned this might not be enough, and said even if Parliament and the government adopted the same position on the constitution, the masses may still be swayed by errant politicians.
Assuming the minister achieves unanimity, one cannot rule out the danger of a protest vote by Kenyans. That is why it is important to re-think the referendum at this stage, Dr Kithure added.
Experts have also pointed out that the current review process provides for a Yes or No referendum, and that, given the prevailing circumstances, the law should provide for two drafts that will yield a Yes-Yes referendum, which will either way deliver a constitution.
Agreed minima
The Constitution of Kenya Review Act, 2008 says the question during the referendum shall require the voter to approve or reject the proposed constitution, and that this question shall be so framed as to require a Yes or No answer.
There is also the view that the law could be amended to allow the government, in case of inability to resolve the contentious issues, to come up with a brief and a general constitution with agreed minimums.
Too much detail encourages contention. In fact, the constitution should be a general document. We can borrow from what South Africa did. They agreed on the basic minimum principles. And these were, among others, equality, human dignity, equitable resource allocation and the rights of minorities, explained Dr Kithure.
Saturday Nation
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