As the clock ticked towards the historic milestone on the 20-year road to a new constitution, the question on every lip is whether this will be another futile rat race.
Or will Kenyans, indeed, rewrite the tablet of laws governing them?
The red flag was noted in Mombasa when a caucus of ministers representing Party of National Unity and Orange Democratic Movement deadlocked over Executive authority in the proposed draft.
Justice Minister Mutula Kilonzo, Moses Wetangula (Foreign) and Uhuru Kenyatta (Deputy PM and Finance minister) led the PNU team in Mombasa while Deputy Prime minister Musalia Mudavadi, Dr Sally Kosgei (Higher Education) and James Orengo (Lands) stood in for ODM.
On Tuesday morning, the Committee of Experts on Constitution Review (CoE) publishes the draft laws, sections of which have been seen by the media. Their approach to distribution of power between the presidency and premiership is contentious.
“ODM team stood its ground and supported the position taken by the Committee of Experts in the harmonised draft,” said a member of the group. The Cabinet, however, agreed at the end of the retreat there was need for a consensus among themselves first.
Sources at the meeting said those who made a strong case for a powerful presidency included Cabinet ministers Kiraitu Murungi, Beth Mugo and Chirau Ali Mwakwere.
Upon returning to Nairobi on Sunday morning, Dujis MP Adan Dualle who is a member of the Political Causus on Reforms (PCR) said the new constitution should be delivered to Kenyans by June next year as proposed by Mr Nzamba Kitonga who leads CoE.
He asked all political players to stop fighting for individual interests by some political players seeking to lead the country after 2012.
PCR is a group of 40 MPs led by Garsen MP Danson Mungatana, Margaret Kamar (Eldoret East) and Dualle and was formed to pressurise legislators opposed to the new constitution.
Some MPs have dismissed the caucus for allegedly being sponsored by some Western governments to push for change because they are convinced that the government is the biggest obstacle to change.
The PCR group convinced House Speaker Kenneth Marende to convene a Kamukunji on Tuesday with argument it was important for parliament to start the process of creating a referendum law in preparation for a quick delivery of a new constitution.
Lawyers estimate that about 60 per cent of the draft is borrowed from the Bomas document that was rejected in the 2005 referendum, and acceptable across board, safe for the contentious clauses, mainly on the Executive.
Senior counsel Paul Muite said: “Consensus must be built on the numbers of areas that form a region under the devolved government, how they will relate with each other through an organogram and what it will cost the tax payer.”
“Even as people jostle over equitable distribution of resources, they are not talking about how they will be generated. Kenyans must now objectively interrogate the draft and the civil society must live up to its duties,” Muite added.
Muite argued that the document must clearly spell out the dispersal of power horizontally and vertically and explain the meanings of administrative devolution.
Cabinet minister Charity Ngilu says personal interest by politicians was drowning the desire by Kenyans to get a new constitution.
“Those who are fighting for an imperial presidency they should know that the same can backfire on them come the next elections or any other time, that is why we need a constitution for posterity,” she argued.
Ngilu said the fight for a new constitution and the current operations of government have been kept alive because of a vibrant media.
Mutula said to him the question was no longer whether Kenyans would get a new constitution but when. “Debaters, voters in the referendum and all of us must abide by the sacred trust we hold for future generations, that the post-Independence decay be buried for good,” he added.
“All this talk on the Executive is political sophistry and elitism. The three models imperial presidency, imperial prime ministers and hybrid system have been used elsewhere, so lets pick one and move on if it doesnt work we will change it,” he added.
Gichugu MP Martha Karua said: “If you rely on the political class to deliver a new constitution it will not happen, that is why Kenyans and the civil society must put a lot of pressure on us.” She said Kenyans must agree on what they want and it should not be guided by the short-term machinations of the political class.
She recalled that the 1997 IPPG deal was informed from the public and the same case also applied to reintroduction of multi-partyism in 1992. Cotu Secretary General Francis Atwoli said unless a timetable for the new constitution was pronounced by the two principals the workers would not be party to the political shenanigans.
“We as workers have given them up to January 10 to unveil a new constitution for Kenyans otherwise we shall unveil one for the country,” he told The Standard on phone from Geneva.
He said Cotu was oppose to the idea of having a person go round the country to seek for votes only to come back and become a ceremonial president at State House.
“The government must be ruled from State House because it is better to have one dictator than be ruled through parliamentary dictatorship,” he added.
Mr Mutakha Kangu who was a member of the defunct Constitution Review Commission of Kenya said CoE should not pander to manipulation by the political class to “fundamentally alter the draft” after 30 days of public debate.
He added “there is a ray of hope” that this years review process might not be derailed by “the interests of politicians” due to international pressure and fear of International Criminal Court chief prosecutor Luis Moreno-Ocampo.
He said politicians were already “throwing spanners into the works” by challenging key aspects of the CoE draft.
Ikolomani MP Bonny Khalwale said he would oppose the new laws if it does not return the so-called “lost” Luyia territories in Rift Valley and Nyanza Provinces to Western.
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