ICC exposes Kenyan MPs’ hypocrisy

The majority of Kenyan MPs are hypocrites. They have now come out in their true colours in defence of people suspected of committing very serious crimes against the people of Kenya. The manner in which Kenyan MPs reacted to the ICC’s exposure of the six suspected criminals, who are about to be accused of leading this country to the orgy of murder, rape and bloodbath, proves that most of them are hypocritical pretenders who specialize in cheating the voters of this country.

When talking to the voters of Kenya, the MPs openly cheat by claiming that all they want is to make sure justice will be done to hundreds of thousands of innocent wananchi whose homes were burnt down by organized hooligans in the payroll of shadowy evil political schemers who were out to spread ethnic hatred among the people. While addressing voters at public rallies the MPs swear to leave no stone unturned until the blood of 1,300 Kenyans who perished after the post 2007 election violence is paid for through true justice at The Hague.

They call for justice at The Hague because they have lost confidence in the Judiciary in Kenya. That is why they have twice rejected moves to establish an independent local tribunal to try PEV perpetrators. While doing so they shouted loudly “Don’t be vague, just support the Hague option”.

Now that Luis Moreno-Ocampo has named six suspects whom he is planning to prosecute for planning and financing the PEV, the MPs have changed their minds and now they are determined to save the people named and accuse Moreno-Ocampo of politicizing the entire ICC legal system. They shamelessly accuse Moreno-Ocampo of being in Prime Minister Raila Odinga’s pocket and removing from the Kenyan political contest possible opponents who are likely to oppose the Prime Minister in the 2012 presidential elections

Fortunately the people of Kenya can see through this myopic propaganda which is only meant to defeat all international efforts to make sure that justice is not only done for the poor people of Kenya , but it is actually seen to be done at the world’s most respected International Criminal Court. The people Moreno-Ocampo has named are political giants who will always be the most protected sacred cows of Kenyan politics. As far as the Kenyan laws are concerned the named people can do no wrong and that is why they are now calling for the establishment of a local tribunal to try them.

The accusations that the ICC chief prosecutor has politicized the legal system at The Hague is itself a political plot to protect people who are about to be charged with very serious crimes. Moreno-Ocampo did not just announce the names of the people he suspects to have planned and financed the PEV; he actually elaborated in details the nature of those crimes.

According to the ICC Press Release on the Kenyan case the post election period of 2007-2008 was one of the most violent periods of the nation’s history. The release said the post election attacks left more than 1, 100 people dead, 3,500 injured and up to 600, 000 forcibly displaced. It says during 60 days of violence, there were hundreds of rapes, possibly more, and over 100, 000 properties were destroyed in six of Kenya’s eight provinces.

“These were not just crimes against innocent Kenyans”, said Prosecutor Moreno-Ocampo. “They were crimes against humanity as a whole. By breaking the cycle of impunity for massive crimes, victims and their families can have justice. And Kenyans can pave the way to peaceful elections in 2012.”

The release says the judges of Pre-Trial Chamber II will now review the evidence. If they determine that there are reasonable grounds to believe that the six persons named committed the alleged crimes, they will decide on the most appropriate way to ensure their appearance in Court. The Prosecution has requested Summonses to Appear.

According to the majority of the people of Kenya these are the right steps to be taken to make sure that justice is seen to be done. In a public opinion research conducted by the respected Ifrotrak Research and Consulting, which is a member of Harris Interactive Global Network, slightly more than half of Kenyans reported their satisfaction with the ICC list. The results of the polls showed that 55 % of the people in the rural areas, which are the majority of Kenyans, are satisfied with the Moreno-Ocampo list. Whereas 47% of those in urban areas were satisfied with the list, only 39 % of those in urban areas were not satisfied with the list.

Kenyans know that Moreno-Ocampo has no political axe to grind in this country. According to the respected prosecutor William Samoei Ruto and Henry Kiprono Kosgey who are prominent leaders of the ODM began as early as December 2006, preparing a criminal plan to attack those identified as supporters of the Party of National Unity (“PNU”). He says Joshua arap Sang, whom he describes as a prominent ODM supporter, was a crucial part of the plan, using his radio program to collect supporters and provide signals to members of the plan on when and where to attack.

Moreno-Ocampo says to reach their goal, Ruto, Kosgey and Sang coordinated a series of actors and institutions to establish a network, using it to implement an organizational policy to commit crimes. Their two goals were: to gain power in the Rift Valley Province, Kenya (“Rift Valley”), and ultimately in the Republic of Kenya, and to punish and expel from the Rift Valley those perceived to support the PNU (collectively referred to as “PNU supporters”).

He explains that Kenyans voted in the presidential election on 27 December 2007. On 30th December 2007, the Electoral Commission of Kenya declared that Mwai Kibaki, presidential candidate for the PNU, had won the election. The announcement triggered one of the most violent periods in Kenya’s history. Moreno-Ocampo says the Prosecution will present some of the incidents, identifying those who were most responsible.

He says thousands of members of the network (“perpetrators”) cultivated by Ruto,
Kosgey and Sang began to execute their plan by attacking PNU supporters immediately after the announcement of the presidential election results on 30 December 2007. On December 30 and 31, 2007, they began attacks in target locations including Turbo town, the greater Eldoret area (Huruma, Kimumu, Langas, and Yamumbi), Kapsabet town, and Nandi Hills town. They approached each location from all directions, burning down PNU supporters’ homes and businesses, killing civilians, and systematically driving them from their homes. On January 1, 2008, the church located on the Kiambaa farm cooperative was attacked and burned with more than one hundred people inside. At least 17 people died. The brunt of the attacks continued into the first week of January 2008.

According to the MPs who are opposing Moreno-Ocampo’s prosecution all this is political propaganda to make sure Raila Odinga becomes the next President without being opposed by William Ruto and Uhuru Kenyatta. The MPs forget that the people of Kenya know the story too well. What they didn’t know was who planned the shocking atrocities. Moreno-Ocampo says he knows and he is doing something about it. That is why he has the support of the majority of Kenyans.

About Uhuru Kenyatta, Francis Muthaura and General Hussein Ali, Moreno-Ocampo also makes a number of accusations. He says in response to Ruto, Kosgey and Sang’s planned attacks on PNU supporters, as well as to deal with protests organized by the ODM, prominent PNU and the three developed and executed a plan to attack perceived ODM supporters in order to keep the PNU in power.

Moreno-Ocampo says under the authority of the National Security Advisory Committee, of which Muthaura and Ali were Chairman and a member, respectively, the Kenya
Police, in joint operations with the Administration Police (“Kenyan Police Forces”), were deployed into ODM strongholds where they used excessive force against civilian protesters in Kisumu (Kisumu District, Nyanza Province) and in Kibera
(Kibera Division, Nairobi Province).

As a consequence, according to Moreno-Ocampo, between the end of December
2007 and the middle of January 2008, the Kenyan Police Forces indiscriminately shot at and killed more than a hundred ODM supporters in Kisumu and Kibera. He says the three also developed a different tactic to retaliate against the attacks on PNU supporters. On or about 3 January 2008, Kenyatta, as the focal point between the PNU and the Mungiki criminal organization, facilitated a meeting with Muthaura , a senior Government of Kenya official, and Mungiki leaders to organize retaliatory attacks against civilian supporters of the ODM.

Thereafter, according to Moreno-Ocampo, Muthaura, in his capacity as Chairman of the National Security Advisory Committee, telephoned Ali, his subordinate as head of the Kenya Police, and instructed Ali not to interfere with the Mungiki. Kenyatta additionally instructed the Mungiki leaders to attend a second meeting on the same day to finalize logistical and financial arrangements for the retaliatory attacks.

All these are very serious accusations against the six suspects. The only way they can convince Kenyans they did not do what Moreno-Ocampo is accusing them of is to go to The Hague and defend themselves. No amount of noise made by Kenyan MPs will make the wananchi change their minds about the strong belief they have that justice on these crucial matters concerning their country can only come from the Hague.

Constitution: Implementation challenges

The implementation of the new Constitution is facing very many serious challenges. These are mostly based on the selfishness of Kenyan leaders who are all expecting to reap all sorts of political benefits from the new Constitution. The majority of them in the ODM have refused to endorse the list of experts to serve in the Commission for the Implementation of the Constitution (CIC) without which the whole implementation process cannot be operationalised.

The reason given by the ODM for this obvious sabotage of the implementation process are not convincing enough. They claim they cannot endorse the list of experts before the Ligale recommendation of 80 new parliamentary constituencies has been published. Yet the Ligale recommendation cannot be published as a court injunction by PNU MPs has stopped that process claiming unfairness on the part of Ligale in the manner in which he distributed the new constituencies.

Realizing that whoever becomes the next President after the 2012 elections will desperately depend on what support he or she gets from Parliament to govern the country, a lot of arm twisting tactics are now being used by the two major political parties to ensure they gain the upper hand in the Legislature even if it is through gerrymandering. Ligale did his gerrymandering on behalf of ODM. PNU want to do theirs through court injunctions. Meanwhile the country is bogged down in what may very well end up in a constitutional crisis.

But as ODM and PNU continue to engage in a lot of shadow boxing to control the next Parliament the process of implementing the new Constitution is suffering a very heavy blow which is turning the political achievements brought about by the new Constitution into a nightmare benefiting the very people who opposed the new Constitution.

When Parliament is dillydallying with the implementation of the new Constitution it is in fact playing with fire .According to Article 261 (5) to be found in Chapter Eighteen on Transitional and Consequential Provisions, the new Constitution says if Parliament fails to enact any particular legislation within the specified time, any person may petition the High Court on the matter.

It says the High Court in determining a petition may make a declaratory order on the matter; and transmit an order directing Parliament and the Attorney- General to take steps to ensure that the required legislation is enacted, within the period specified in the order, and to report the progress to the Chief Justice.

If, according to the Constitution, Parliament fails to enact legislation in accordance with that order, the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament. That process to dissolve Parliament has indeed started as the matter is already in court.

It so happens that there are some sinister characters in our society who would like to see the country go through another period of disturbance in order to stop the trend of implementing the new Constitution. These could be the same people who ridicule Luis Moreno-Ocampo when he threatens to name the masterminds of the PEV and prosecute them. The characters would rather the whole country suffered once more than their so called leaders going to jail alone.

According to the latest Kenyan National Dialogue and Reconciliation (KNDR) report published last October, there are serious challenges facing the implementation of the new constitution. These include what the report calls cohesion challenges during the implementation process and operational challenges.

On cohesion challenges the reports says there are still divisions in the Coalition Government which have contributed to creating problems in the implementation process. Though the new Constitution provides for the establishment of the Commission for the Implementation of the Constitution (CIC) and the Constitutional Implementation Oversight Committee (CIOC) of the Parliament as the organs to steer the transition, for instance, lack of cohesion within the Coalition appeared to constrain establishment of these important organs.

In the case of CIOC, for example, the country witnessed such a tug-of-war between the ODM and PNU that almost delayed the formation of the committee. While the two parties struggled to get their own man to chair the committee it was obvious that they cared very little about the deadline to be met. This was despite the fact that a joint Parliamentary Group meeting had earlier on agreed to back PNU’s Mohamed Abdikadir for the job because of his proven record of successfully chairing the parliamentary select committee that midwifed the new Constitution. The agreement at a joint Parliamentary Group meeting notwithstanding, ODM, completely out of the blue, suggested that Ababu Namwamba was the best suited person for the job.

The two political parties had to engage in a considerable amount of horse trading through which Namwamba had to be given the chairmanship of Parliamentary Committee on Legal and Justice Affairs before ODM agreed to back Abdikadir. The Public Service Commission (PSC) did a commendable job of short listing the names they sent to the President and the Prime Minister who appointed members of the CIC for Parliament to approve. Unfortunately Parliament has refused to do so ostensibly for lacking regional balance.

Given the fact that the country has now 47 regions known as counties it is absolutely impossible to have a CIC that represents every region since the total number of its members are only nine. The excuse given by MPs to reject the list is both unreasonable and myopic as it may very well throw them out of Parliament. The power behind the rejection of the CIC list is the ODM which is wrongly connecting the process with the Ligale proposal as a very unfair blackmail of the whole country.

Though the names of people who were short listed by the PSC belong to some of Kenya’s most respected legal brains, they are people who can easily be identifies with either ODM or PNU. A few of them, like Koki Muli, were neutral and could probably have provided the services similar to those of Nzamba Kitonga as the chairman of CoE. Whatever the case may be the final list will be approved by Parliament which Kenyans hope will be more concerned with the future of this country rather than party triumphalism which so far has blinded their wisdom.

The tug-of-war games played by ODM and PNU have actually been criticized by the KNDR as an attempt to hijack the implementation process, a view reinforced by claims that wider consultations are lacking before drafting and publishing of Bills which are needed before operationalising the new Constitution. According to the report maintaining the bipartisan spirit, national consensus and momentum created by the referendum to ensure effective implementation of the New Constitution is currently the challenge facing Kenya’s political leaders, especially the two main political parties.

Constitution: Ruto’s rights also protected

William Ruto has made every effort to politicize the criminal case against him. But it looks like all his efforts will miserably fail as that story is only accepted among his Kalenjin followers. He is therefore an extremely angry man. He suspects there is someone, probably Raila Odinga, who wants to do him in. The rivalry between the two has now turned into a bitter enmity with no-holds-barred tactics being used by both sides.

As the undisputed leader of the ODM, Raila would obviously like to show he has powers to discipline his ostensible number two man in the party. But rebellious Ruto is still out to prove that he can be an extremely damaging thorn in Raila’s skin, with powers not only to deny him the massive Kalenjin support, but also to completely destroy him from within his own party.

As the battle between the two becomes more public with each passing day, Ruto has been seriously wounded and is showing signs of running away. Though he assures his supporters to have the wherewithal to fight another day, he is at the moment the underdog with criminal charges of fraud over his head. He is accused of defrauding the Kenya Pipeline Company (KPC) of 96 million shillings by purporting to sell KPC land belonging to the Ministry of Environment and Natural Resources nine years ago.

When the crime was allegedly committed Ruto was a sacred cow. No law enforcing agent would have dared touch him with a barge pole. Doing so would not only have been politically incorrect; but would also have amounted to committing political suicide that could only lead to being shown the door. Ruto, and many like him, continued becoming mysteriously richer all the time as public land, including forests, were being openly grabbed and sold at exorbitant amounts to government institutions and companies like the KPC.

But as soon as Kibaki came into power things began to change. Ruto was first charged for the alleged offence in 2005. But the old Constitution was still in force. He therefore wasted no time in trying to use it to get the case swept under the carpet. He in fact almost succeeded because for such a long time the case was almost forgotten. The matter must have been revived by the new Constitution which made Martha Karua challenge the Prime Minister in Parliament to tell the country what William Ruto was doing in the Cabinet when there was a criminal case pending in court against him.

The Prime Minister had to pretend to defend Ruto when he said the Minister for Higher Education had challenged the criminal case in the high court. Until the ruling of the High Court which would determine whether or not Ruto had a case to answer, the Minister for Higher Education was sort of protected. It so happened that soon after the Prime Ministers’ statement the High Court made a ruling declaring that Ruto had a criminal case to answer. Weather the abruptly expeditious ruling of the High Court was caused by the Prime Minister’s intervention or the new Constitution is neither here nor there.

In 2005 when Ruto was first charged with the offence he claimed the charges against him violated his Constitutional rights. Paradoxically it is the new Constitution which is making him now face the music as it has come with very strict demands and requirements for people who want to be leaders of this country.

Rather than defend himself in the magistrate’s court where he was first charged, Ruto took the matter to the High Court, which he expected to stop the case for the flimsy reasons of fictitious violation of his “constitutional rights”. But sitting at the High Court this time were three Judges who are about to be vetted, as recommended by the new Constitution , on whether or not they have the ability to deliver justice in a jurisprudentially upright manner . The three judges – Jeanne Gacheche, Roselyn Wendoh and Leonard Njagi had no option but to strictly follow the law in throwing out Ruto’s request.

While doing so they clearly said: “There is no proof that the applicant’s rights have been violated or breached in any way. For that reason we are unable to grant any prayers sought and send back the case to the trial court for hearing and determination.” The claims made by Ruto that the case was politically motivated were also rejected by the High Court, though the suspended Minister came out of court singing the same song.

Soon after Ruto lost his plea to have the case thrown out of court there was a public outcry urging both the President and the Prime Minister to suspend the Minister for Higher education until his case was heard and he was proved not guilty. The loudest noise against Ruto came from Martha Karua and Mutula Kilonzo who are both very highly respected lawyers.

Whatever the case may be Ruto is for the time being an extremely powerful politician in Kenya. Not only is he controlling the five million plus Kalenjin votes, but he is also an important member of the KKK alliance which hopes to form the next Government of Kikuyus, Kalenjins and Kambas. For these two reasons alone Raila has every excuse to push Ruto over the cliff so as to pave his almost undisputed success in his expected 2012 race for the presidency.

Kibaki, on the other hand, may not care much about the KKK and its success after his administration. But what he cares most about is the success of the new Constitution which has very strict demands on both the rule of law and the fight against corruption. Kibaki would therefore not risk the possibility of weakening the importance of the new Constitution for the sake of pleasing Ruto, however powerful he may be among the Kalenjins. Besides that, Kibaki has no more political ambition and does not really care who takes over from him when he retires as the man who gave Kenya a new and most democratic Constitution. That reputation alone is bound to guarantee him perpetual respect long after he departs from both the political scene and indeed from this world.

So in obeying the Anti-Corruption and Economic Crimes Act which demands public officers who are charged with corruption or economic crime to be suspended at half pay, with effect from the date of the charge, Kibaki and Raila had no option but to suspend Ruto, albeit for completely different reasons. Because the law also says the public officer ceases to be suspended if the proceedings against him are discontinued or if he is acquitted, Ruto therefore still stands a chance of getting his job back in the Cabinet, but first he has the uphill task of fighting the criminal charges against him.

Unfortunately the line of defence he has taken of politicizing the entire case will only put him in more trouble because the three judges have already ruled on that matter. Indeed it will be extremely difficult for the accused politician to continue claiming that the entire case against him is political because under the new Constitution the independence of the Judiciary is very well defined and defended.

William Ruto is about to discover that the days when the Executive manipulated the Judiciary in order to win political favours and punish those opposed to the dictatorial regimes of the past are gone and gone forever. Today the courts are playing a completely different role as defined by Article 159(1) of the Constitution which clearly says judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under the Constitution.

It further says that in exercising judicial authority, the courts and tribunals shall be guided by the principles of justice being done to all, irrespective of status. It says justice shall not be delayed though alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted. Since Ruto’s case is obviously criminal the last options are out of the question.

Today Ruto has appealed against the ruling of the three judges who see no merit for him to continue claiming his “constitutional rights” are being violated. The old style of using that argument as tactful procedural technicalities in order to defeat justice is taken care of very well by the new Constitution which clearly says in Article 159(2) (d) justice shall be administered without undue regard to procedural technicalities.

When Ruto continues to claim that his criminal case is a political one he is in fact challenging the independence of the Judiciary which is defended in the new Constitution’s Article 160(1) which says the Judiciary shall not be subject to the control or direction of any person or authority. When Ruto, however, says he has to carry his own cross he is absolutely right and he stands a very good chance of bouncing back into political popularity outside his own Kalenjin chiefdom when he legally succeeds in defending himself against all the criminal charges against him. After all the new Constitution also defends his right to a fair trial.

Constitution: Judicial Service Bill meticulous

Just as the MP for Kamukunji, Simon Mbugua, moves to Court to try and stop Parliament from passing the Bill on vetting judges, Mutula Kilonzo has published yet another Bill to establish the Judicial Service Commission (JSC) which will hire, fire and discipline judges as well establish the National Council of the Administration of Justice. The latest legislation is the Judicial Service Bill, 2010. Despite all the noise that is being made to stop the process of implementation of the new Constitution without first creating the CIC, Mutula seems to be moving with the speed of lightening to change the Judiciary according to the new Constitution.

There are many who will doubt his motives. Indeed it is the same Mutula Kilonzo who had expressed the wish that the ICC should now hand the post election violence cases to the local Judiciary. Questions will obviously be asked whether Mutula is moving so fast as to defeat the aims and aspirations of the ICC in Kenya. The answer to that question will probably have to come from Parliament which must debate the new Bills on the Judiciary. As Parliament debates the two Bills on the Judiciary it must also examine whether the motive of legislating them expeditiously is to keep the ICC away.

Mutula is on record claiming the moment judges have been vetted and the police reformed then there will be no need for the ICC. The trouble is that the ICC has gone very far in nearing the actual prosecution of the people it will soon indict in connection with the post election violence. Whereas vetting judges will certainly be very good for the country in removing corruption from the Judiciary, stopping the ICC from prosecuting the few people it has identified from Kofi Annan’s envelop will only have the opposite effect of promoting impunity.

According to the Bill its object and purpose is to ensure that the JSC and the Judiciary shall be the organs of management of judicial services and shall uphold, sustain and facilitate a Judiciary that is independent, impartial and subject only to the provisions of the Constitution and the law. The new law will make sure that the JSC shall facilitate the conduct of a judicial process designed to render justice to all and be accountable to the people of Kenya.

The Bill says the JSC shall facilitate a judicial process that is committed to the expeditious determination of disputes; facilitate a judicial process that is committed to the just resolution of disputes; support and sustain a judicial process that is committed to the protection of the people and of their human rights; promote and sustain fair procedures in its functioning and in the operations of the judicial process, and in particular shall be guided in all cases in which it has the responsibility of taking a decision affecting a judicial officer of any rank or its own employee, by the rules of natural justice.

The JSC shall be the administrative manifestation of the Judiciary's autonomy and inherent power to protect and regulate its own process, achieving these objects through application of principles set out in the Constitution, and other laws. The Bill says it shall be guided in their internal affairs and in the discharge of their mandates by considerations of social and gender equity and the need to remove any historical factors of discrimination; and apply modern technology in their operations.

On standard of service the Bill proposes that in the exercise of the powers or the performance of the functions conferred by this Act, the Commission and the Judiciary shall among others have the technical, infrastructural and administrative competence to ensure that the requirements of the judicial process are fulfilled; adopt quality service as a core principle and, to uphold this principle, the Commission and the Judiciary shall formulate a modern and constantly updated scheme of judicial and other training for all categories of Judges, judicial officers and for the Commission's and staff.

It says the JSC and the Judiciary shall be guided in their activities by the relevant
provisions of the Constitution; uphold the judicial service code of conduct and
ethics as may by regulations be prescribed; be non-partisan and non-political in orientation and operations; promote and uphold honesty and integrity in its
operations, and shall give fulfillment to all values essential for the discharge of judicial functions; and apply and promote such other positive values as the Commission may by regulations prescribe.

The Bill also describes in details the functions of the new Chief Justice which shall include providing the linkage between the Judiciary and the other arms of Government. It says the CJ shall also be the Head of the Judiciary and the President of the Supreme Court . The Bill suggests that the CJ shall assign duties to the Deputy Chief Justice,president of the Court of Appeal, the Principal Judge of the High Court and the Chief Registrar of the Judiciary.

It also says the CJ shall give an annual report to the nation on the state of
the Judiciary and the administration of justice; and exercise general direction and control over the Judiciary. The Deputy Chief Justice shall be the Deputy Head of the Judiciary and the vice-president of the Supreme Court and shall be responsible to the Chief Justice in the exercise of the functions and duties of the office.

The Bill suggests that the president of the Court of Appeal and the Principal Judge of the High Court shall each serve for a non-renewable term of three (3) years. It also suggest that the president of the Court of Appeal and the Principal Judge of the High Court shall in consultation with the Chief Registrar of the Judiciary be responsible to the Chief Justice for the administration of the Court of Appeal and High Court respectively. A Resident Judge and High Court Division Head shall in consultation with the Chief Registrar be responsible to the Principal Judge of the High Court for the administration of their station or division.

According to the Bill the establishment and functions of the Commission and appointment of members shall be in accordance with the Constitution. .The Commission shall consist of members appointed in accordance with the Constitution and the provisions of this Act. Members are to be nominated by the President under Article 171 (2) (h) of the Constitution. The President shall within seven days of the commencement of this Act submit the names of the nominees to the National Assembly. the National Assembly shall, within seven days after it first meets after receiving the names of the nominees consider the nominees and either approve or reject; and notify the President as to its approval or rejection.

If the National Assembly approves the nominees nominated, the President shall, within three days after receiving the notification of the National Assembly, appoint the nominees as members of the Commission. If the National Assembly rejects a nominee submitted by the President, the President shall within three days after receiving the notification of the National Assembly, submit the name of a new nominee to the National Assembly and the provisions of the Act shall apply with necessary modifications with respect to the new nominee.

According to Article 171(2) of the Constitution the Commission shall consist of the Chief Justice, who shall be the chairperson of the Commission; one Supreme Court judge elected by the judges of the Supreme Court; one Court of Appeal judge elected by the judges of the Court of Appeal; one High Court judge and one magistrate, one a woman and one a man, elected by the members of the association of judges and magistrates; the Attorney-General; two advocates, one a woman and one a man, each of whom has at least fifteen years’ experience, elected by the members of the statutory body responsible for the professional regulation of advocates.

One person shall be nominated by the Public Service Commission; and one woman and one man to represent the public, not being lawyers, appointed by the President with the approval of the National Assembly. The Chief Registrar of the Judiciary shall be the Secretary to the Commission. Members of the Commission, apart from the Chief Justice and the Attorney-General, shall hold office, provided that they remain qualified, for a term of five years and shall be eligible to be nominated for one further term of five years.

The Bill also describes the transparent manner in which judges and other judicial officers will in future be appointed, removed or disciplined. It also describes how the National Council on Administration of Justice will be established and who will be its members.According to Mutula Kilonzo the principal object of this Bill is to improve the provision of judicial services and administration of justice.

In its memorandum of objects and reasons the Minister says it achieves this by reconstituting and incorporating the Judicial Service Commission, modernizing and expanding its functions including clearly articulating the procedure for appointment and removal of judges, and discipline of other judicial officers and staff. Mutula says the Bill also enhances the Commission’s as well as the Judiciary’s operational and financial autonomy. And to ensure a coordinated, efficient, effective and consultative approach in the administration of justice and reform of the justice system, the Bill establishes the National Council on Administration of Justice.

Constitution: Judges under vetting microscope

What the Vetting of Judges and Magistrates Bill 2010 demands from magistrates and judges amounts to applying for their jobs all over again and being interviewed by a team of very highly respected professional people. On integrity the Bill demands that the magistrates and judges should demonstrate consistent history of honesty and high moral character in professional and personal life; respect for professional duties arising under the codes of professional and judicial conduct; and ability to understand the need to maintain propriety and the appearance of Propriety .

This means the manner in which magistrates and judges have been working by reporting on duty as and when they pleased will now be a thing of the past. The Bill gives the Vetting of Judges and Magistrates Board very strict methods to use in order to find out whether the judges and magistrates they are vetting will be fair in exercising their duties. It says magistrates and judges being vetted will be expected to demonstrate to have the ability to be impartial to all persons and commitment to equal justice under the law.

It also says open-mindedness and capacity to decide issues according to the law, even when the law conflicts with personal views will be an important attributes for judges and magistrates to have. The Board will also be expected to look at the judges and magistrates’ temperament which shall include but not limited to demonstrable possession of compassion and humility; history of courtesy and civility in dealing with others; ability to maintain composure under stress; and ability to control anger and maintain calmness and order.

They will also be expected to have very high standard of judgment which will include common sense, elements of which shall include but not limited to a sound balance between abstract knowledge and practical reality and in particular, demonstrable ability to make prompt decisions that resolve difficult problems in a way that makes practical sense within the constraints of any applicable rules or governing principles.

On legal and life experience the Bill demands the Board to look at the amount and breadth of legal experience and the suitability of that experience for the position, including trial and other courtroom experience and administrative skills; broader qualities reflected in life experiences, such as the diversity of personal and educational history, exposure to persons of different ethnic and cultural backgrounds, and demonstrable interests in areas outside the legal field.

The Bill expects the Board to find out whether the judges and magistrates have demonstrable commitment to public and community service: elements of which shall include but not limited to the extent to which a judge or magistrate has demonstrated a commitment to the community generally and to improving access to the justice system in particular.

The Bill demands the Board to consider information gathered in the course of personal interviews with the affected judges and magistrates as well as their records to be confidential. It says every judge or magistrate to be vetted shall be given sufficient notice which shall include a summary of complaints, if any, against the judge or magistrate. For this reason the hearing by the Board may not be conducted in public, unless the concerned judge or magistrate requests a public hearing. It also says the rules of natural justice shall apply with reference to the Board’s proceedings.

The Bill says that a judge or magistrate who submits to vetting shall be entitled at their own cost, to legal representation. According to the Bill the first judges and magistrates to be vetted shall be the Court of Appeal Judges, followed by Judges of the High Court, the Registrar of the High Court, the Chief Court Administrator, Chief Magistrates and others in that order. Upon finding on the face of record that a serving judge or magistrate should be removed, they shall be required to immediately proceed on leave.

According to the Bill the Board shall inform the concerned judge or magistrate in writing of the final determination including reasons for the determination. Once informed of the decision the judge or magistrate shall be deemed removed. The decision to remove a judge or magistrate from service shall be made public. According to the Bill a judge or magistrate, who has undergone the vetting process and is dissatisfied with the determination of the Board, may request for review by the same panel within seven days of the determination.

The Bill says the Board shall not grant a request for review unless the request is based on the discovery of a new and important matter which was not within the knowledge of or could not be produced by the judge or magistrate at the time the determination or finding sought to be reviewed was made provided that such lack of knowledge on the part of the judge or magistrate was not due to lack of due diligence; or on some mistake or error apparent on the face of the record. The Bill also says the decision by the panel under this section shall not be subject to further review or question in, or review by, any court.

The Bill explains that the vetting process once commenced shall not exceed a period of one year. The vetting of Court of Appeal judges and judges of the High Court shall be finalized within three months; the vetting of magistrates shall be finalized within six months; and all the requests for reviews granted shall be considered after the vetting of all judges and magistrates shall be finalized within one month. It also explains that the Board shall stand dissolved within thirty days of the execution of its mandate upon which this Act shall lapse.

The Bill is not just on the fault finding mission. In fact it offers very generous terms to the judges and magistrates it will show the door after the entire exercise. It says a serving judge or magistrate shall elect within three months of the commencement of the Act whether to be subjected to the vetting process; or to leave judicial service voluntarily. A judge or magistrate who elects to leave judicial service voluntarily or is found unsuitable after vetting shall be entitled to terminal benefits for early retirement calculated on the basis of the number of years served. It generously says that a judge or magistrate who voluntarily leaves service or is found unsuitable after vetting shall be deemed qualified for early retirement.

Constitution: Judges’ vetting Bill promising

The days of corrupt judges and magistrates are about to disappear. A bill to sanitize the Judiciary has been published. Known as The Vetting of Judges and Magistrates Bill 2010, it aims at vetting of judges and magistrate to determine their suitability in order for them to continue serving in the Judiciary. This follows the constitutional directive as provided under Clause 23 of the Sixth Schedule of the Constitution which commands Parliament to enact legislation to establish a mechanism and procedures for vetting the people who serve on the Bench.

According to Article 159 (1) of the new Constitution Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under the new Constitution. The Constitution also says in exercising judicial authority, the courts and tribunals shall be guided by the principles of justice being done to all, irrespective of status; and making sure that justice shall not be delayed. The new Constitution also promotes the alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.

In the past corruption in the Judiciary was promoted by undue regard to
procedural technicalities that saw so many corrupt individual avoiding justice by claiming protection from the Constitution we have just thrown into the dustbin.
The vetting Bill establishes an independent Board to be known as the Vetting of Judges and Magistrates Board which shall be made up of very highly respected personalities of proven ability.

Though the nine members of the Vetting Board shall be nominated by the President in consultation with the Prime Minister, Parliament will have to endorse those nominations before the two top leaders in Kenya make the appointments. Six of the appointees will be Kenyans .This makes the appointment of members of the Vetting Board to be so transparent that the people of Kenya will be able to follow the whole procedure in a very open manner.

The Bill does not allow the President to lock himself up in a room with the Prime Minister to appoint members of the Vetting Board. It actually sets up a very elaborate procedure of getting the right people for the tough job. It all starts with the President in consultation with the Prime Minister declaring the vacancies in the Board through a notice in the Gazette. Applications will be forwarded to the Public Service Commission and may be made by any qualified person; or organizations or group of persons proposing the nomination of any qualified person.

The names of all applicants shall then be published in the Gazette before the Public Service Commission convenes a Committee comprising of one representative from the Cabinet Office; Office of the Prime Minister; Ministry of Justice, National Cohesion and Constitutional Affairs; State Law Office; Ministry of State for Public Service; and
Appointment of Public Service Commission; for the purposes of considering the applications, interviewing and short listing at least three persons qualified for appointment as chairperson and eighteen persons who qualify for appointment as members.

For the positions of the chairperson and deputy chairperson the team will consider people with at least twenty (20) years or an aggregate of twenty (20) years experience as judge of superior court, distinguished academic, judicial officer or other relevant legal practice in the public or private sector in Kenya. The Bill says a person is qualified for appointment as a member if such person has a degree from a recognized university; has at least fifteen (15) years distinguished post qualification experience in their field of study; and satisfies the requirements of Chapter Six of the Constitution which deals with leadership and integrity.

After short-listing the names of the people with the right qualifications the Public Service Commission shall forward the names President and the Prime Minister for nomination. That is when the President, in consultation with the Prime Minister, shall nominate a chairperson and eight other persons for appointment as members of the Board and forward the names to the National Assembly.

The National Assembly shall then consider all the nominations received and approve or reject any nomination. Where the National Assembly approves the nominees, the Speaker shall within three days of the approval forward the names of the approved persons to the President for appointment. If the MPs reject any nomination, the Speaker shall within three days of the rejection communicate the decision to the President, who in consultation with the Prime Minister shall submit fresh nomination from amongst the persons short-listed and forwarded by the Public Service Commission.

If the National Assembly rejects all or any subsequent nominee submitted by the President for approval then the whole process has to be repeated all over again. But if the MPs approve the President and Prime Minister’s nominations then the President shall, within seven days, by notice in the Gazette, appoint the chairperson and members approved by the National Assembly. The Bill requires the President and the Prime Minister to ensure that the Board reflects the regional and ethnic diversity of the people of Kenya and not more than two-thirds of the members are of the same gender. The President shall also, in consultation with the Prime Minister nominate three distinguished non-citizen serving or retired judges each of whom has served as a Chief Justice or judge of the superior court to be members of the Board.

In the tough task of vetting Judges and magistrates the Board shall consider whether a serving judge or magistrate would have met the constitutional suitability thresholds for appointment as a judge of the superior courts or as a magistrate. It shall also consider the track record of the concerned judge or magistrate including prior judicial pronouncements, competence and diligence. Judges and magistrates who have made pronounced unfair judgments as a result of corruption will easily be exposed through this tight procedure.

The Board will also examine any pending or concluded criminal cases before a court of law against the concerned judge or magistrate; and also look at any recommendations for prosecution by the Attorney-General or Ethics and Anti-Corruption Commission. Likewise the Board will examine pending complaints from any person or body including but not limited to Law Society of Kenya, Ethics and Anti-Corruption Commission, Disciplinary Committee, Advocates Complaints Commission, the Attorney General, Public Complaints Standing Committee, Kenya National Commission on Human Rights, National Security Intelligence Service, the Police and the Judicial Service Commission. This means the entire Kenyan community as represented in various institutions will be involved in vetting of Judges and Magistrates.

According to the Bill the suitability thresholds referred to shall, among others, capture professional competence: elements of which shall include, but not limited to, intellectual capacity, legal judgment, diligence, substantive and procedural knowledge of the law, organizational and administrative skills, and the ability to work well with a variety of people. The judges and magistrates to be vetted will have to prove to have written and oral communication skills: the elements of which shall include, but not limited to, ability to communicate in writing and speaking; ability to discuss factual and legal issues in clear, logical, and accurate legal writing; and effectiveness in communicating orally in a way that will readily be understood and respected by people from all walks of life.

Constitution: Implementation Bill is excellent

The Commission for the Implementation of the Constitution Bill, 2010 has been published. It reveals a commendable attempt by Mutula Kilonzo to create a very transparent mechanism to appoint competent Kenyans who will play a major role in facilitating and overseeing the development of legislation and administrative procedures required to implement the new Constitution.

In its Memorandum of Objects and Reasons, Mutula explains that the main object of the Bill is to provide for the qualifications and appointment procedure of chairperson and members of the Constitution Implementation Commission established under the Sixth Schedule of the Constitution. He says the Commission is established primarily to oversee the implementation of the new Constitution of Kenya promulgated on the 27th August 2010.

According to the Minister the Constitution establishes a presidential system of Government and in such models, appointment to key offices originates from the Executive. He explains that under Article 250 the role of Parliament is to approve the person nominated by the Executive.

According to the Bill, the Commission for the Implementation of the Constitution (CIC) will have quite a heavy responsibility which will include monitoring, facilitating, and overseeing the development of legislation and administrative procedures required to implement the Constitution; coordinating with the Attorney-General and the Kenya
Law Reform Commission in preparing for tabling in Parliament, the legislation required to implement the Constitution; working with each constitutional Commission to ensure that the letter and the spirit of the Constitution is respected.

The responsibility will also include reporting regularly to the Constitutional Implementation Oversight Committee, which will soon have to be formed by Parliament, on the progress in the implementation of the Constitution; and any impediments to the implementation of the constitution. The duties will also include exercising such other functions as are provided for by the constitution or any other written law.

The Bill sets very high standards for people who will want to serve in the (CIC). Only qualified people can hope to be appointed to serve it. No one can hope to be appointed to the Commission unless he or she is a citizen of Kenya; possess a degree from a recognized university; has knowledge and experience of at least ten years in matters relating to either law, public administration, economics, gender, human rights, or government.

Apart from the above qualifications no one can hope to be appointed to the Commission unless he or she meets the requirements of Chapter Six of the Constitution. Which means whoever is appointed must demonstrates respect for the people; brings honour to the nation and dignity to the office; and promote public confidence in the integrityof the office according to the new Constitution. He or she will be expected to take the responsibility to serve the people, rather than the power to rule them.

According to the Bill the people who will serve in the CIC will have to have had a distinguished career in their respective fields. The chairperson of the Commission shall be a person who is qualified to hold the office of judge of the Supreme Court under the Constitution. The Bill categorically says no person shall be qualified for appointment as a member if such a person is a Member of Parliament; is a member of a local authority; or is bankrupt. Those who served in the Committee of Experts which was appointed under the Constitution of Kenya Review Act, 2008 are also not allowed to serve in the ICC.

No sooner was the Bill to create the CIC published than the country’s three most respected legal institutions – LSK, Fida and ICJ drew up a list of lawyers they thought should not be considered “for the position of Chief Justice when it falls vacant in February”. Though the list of the people the three law institution is supposed to make sure none of them becomes the CJ after Evans Gicheru, the innuendo is clear. Those on the list should also not be considered to serve in the CIC. On the list of the lawyers LSK, Fida and ICJ don’t want to be considered for the post of the Chief Justice are all the current Judges and magistrates “because they have not been vetted”

According to Article 73(2) in Chapter Six of the Constitution the guiding principles of leadership and integrity include selection on the basis of personal integrity, competence and suitability. The people who will serve in the CIC must be those with objectivity and impartiality in decision making, and in ensuring that the decisions they make are not influenced by nepotism, favouritism, other improper motives or corrupt practices.

They must be people who will be expected to provide selfless service based solely on the public interest, demonstrated by honesty in the execution of public duties. According to the Constitution they must also make declaration of any personal interest that may conflict with public duties. They must be people who are prepared to be accountable to the public for their decisions and actions while they remain disciplined and committed in serving the people.

When MPs meet soon to debate on The Commission for the Implementation of the Constitution Bill, 2010 they will find a very comprehensive draft legislation they may not be able to alter. The people will particularly see which members of parliament will want to alter the procedure laid down by Mutula Kilonzo to be followed before hiring members of the CIC. According to the Bill the procedure begins when the President in consultation with the Prime Minister when they declare vacancies in the Commission.

The President and the Prime Minister will request for applications to be forwarded to the Public Service Commission within fourteen days of the notice and be made by any qualified person; or through an organization or group of persons proposing the nomination of any qualified person. According to the Bill the names of all applicants shall be published in the Gazette. Then the Public Service Commission will convene a Committee comprising of one representative from the Cabinet Office; Office of the Prime Minister; Ministry of Justice, National Cohesion and Constitutional Affairs; State Law Office; Ministry of State for Public Service; and Public Service Commission; for the purposes of considering the applications, interviewing and short listing at least three persons qualified for appointment as chairperson and eighteen persons who qualify for appointment as members of the CIC.

This is probably one of the most transparent ways of appointing public officials. After making the short listing the Public Service Commission shall within seven days forward the names of Chairperson and members of the Commission to the President and the Prime Minister for nomination. The President, in consultation with the Prime Minister, shall then nominate within seven days a chairperson and eight other persons for appointment as chairperson and members of the Commission respectively and forward the same to the National Assembly.

After that the National Assembly shall, within fourteen days, consider all nominations received and approve or reject any nomination. The Bill says upon consideration and approval by the National Assembly, the Speaker shall within seven days forward the names of approved persons to the President for appointment. But if the National Assembly rejects any nomination, the Speaker shall within three days communicate its decision to the President and the Prime Minister to submit fresh nominations.

The Bill explains that if a nominee is rejected by Parliament, the President in consultation with the Prime Minister shall within seven days, submit to the National
Assembly a fresh nomination from amongst the persons short listed and forwarded by the Public Service Commission. The Bill also recommends that in short listing, nominating or appointing persons as Chairperson and members of the Commission, the short listing Committee, Parliament and the President shall ensure that not more than two-thirds of the members are of the same gender. The Bill is certainly drafted in the spirit of the new Constitution.

Even after being appointed to become the boss of the CIC chairperson or a member may be removed from office for misbehavior or misconduct incompatible with the
functions of the Commission. The Bill also makes provisions for the position of a Secretary of the Commission who may be removed by the Commission only for inability to perform the functions of his office arising out of physical or mental incapacity; misbehavior or misconduct; or incompetence.

Among the most important duties of the Commission will be to prepare a progress report every six months and submit the report to the Parliamentary Select Committee and the President. According to the Bill the progress report shall state the progress in the implementation of the constitution; identify any impediments to the implementation of the constitution; recommend any legal and administrative measures to address specific concerns identified by the Commission; and state any other information relating to its function that the Commission considers necessary.

The Bill stipulates that the Commission shall publish the report in the Gazette and in such other manner as the Commission may determine. Apart from that the Commission shall cause an annual report to be prepared for each financial year. It shall submit the annual report to the President and Parliament within three months after the end of the year to which it relates. According to he Bill the annual report shall contain, in respect of the year to which it relates the financial statements of the Commission; a description of the activities of the Commission; such other statistical information as the Commission considers appropriate relating to the implementation of the Constitution; any other information relating to its functions that the Commission considers necessary.

Finally the Bill describes how the Commission shall stand dissolved five years after it is established or at the full implementation the Constitution as determined by Parliament, whichever is sooner, but the National Assembly may, by resolution, extend its life. The Bill says upon dissolution of the Commission under the Constitution the Commission for the Implementation of the Constitution Act, 2010, shall lapse.

Whichever way one looks at the Bill it reflects an excellent job done by Mutula Kilonzo. The country will now very keenly look at Parliament to see which member will try to sabotage the Bill, in which case he or she will have committed political suicide.

Constitution: Integrity remains a challenge

Long after the promulgation of the new Constitution in Kenya, the implementation of Chapter Six on leadership and integrity will remain a challenge that will test the seriousness of those charged with the operationalization of the new supreme law. This challenge was accepted by all the leaders as they were celebrating the inauguration of the new Constitution.

At the big celebration on August 27, President Mwai Kibaki was the first to accept that the new Constitution’s leadership code and values made it clear that the people who will present themselves for public or State offices would have to be individuals of integrity, willing to be held accountable by the people and the institutions and laws of our country. That call by the President, was an early warning to all those who, in the past, fought to get leadership positions only for lucrative reasons.

The new Constitution creates very many attractive leadership positions. Among the people who have shown interest in the new positions are well known corrupt politicians. Kenyan MPs who would not serve the country without milking the taxpayers dry are among the first to declare their interests to become future senators and county governors. This time it is not going to be business as usual for them. Before the current crop of leaders occupy the new public offices they will have to prove that they are men and women of high integrity.

The most challenging positions will be those of the 47 Governors who will control huge budgets that must be used to bring about development in all parts of the country. As counties will have the responsibility to give contracts to many service providers, the temptation to engage in corrupt activities will obviously be there. There will be little wonder, therefore, when the positions of governors attract the country’s wealthiest politicians who will only look at the new offices as the geese that lay a lot of golden eggs.

Whereas senatorial positions will be extremely prestigious, they will not be as lucratively attractive as positions of governorships. To get to the Senate, candidates sponsored by the most popular political parties in the counties will stand a better chance of winning than the local tycoons. But very few poor people will win any governorship which will attract people who are already heavyweights financially. The only trouble will be to find any rich individual who has honestly acquired his or her wealth through hard work.

When Mwai Kibaki, therefore, says the new Constitution will ensure current and future leaders entrench integrity and fairness in the just system that will build a world-class public service and promote politics of issue and ideas, only a handful of people who aspire to become senators and governors agree with him. Many of the corrupt leaders wish the President’s words will never come true. The greedy and corrupt politicians will most certainly try to continue occupying leadership positions with the sole purpose of making more money by continuing to milk the poor people.

For the leaders to guarantee that the new Bill of Rights is enforced; and for them to also make sure that a framework is established that makes both the national and county governments work harmoniously, as Mwai Kibaki suggested, the current crop of leadership must undergo a complete metamorphosis. This is as difficult as, to paraphrase Jesus of Nazareth, to expect an elephant to walk through an eye of a needle. It is therefore going to be a real uphill task to hope Kenyan leaders, as Mwai Kibaki expects, will facilitate the success of the Kenyan businesses and industries as well as put in place land ownership and use systems that promote equity and productivity.

Yet Mwai Kibaki was not the only one who sounded these hard hitting warnings during the promulgation of the new Constitution. The Prime Minister did pretty much the same when he urged Kenyans to be vigilant and stop corruption from stealing our future and negative ethnicity from weakening our nationhood. Very much like Mwai Kibaki, Raila asked those in charge of public affairs to make sure that public service becomes what it is supposed to be i.e. public service, but not self service.

According to the Prime Minister this new beginning must mark the end of shallow political partnership and herald the start of mature competition among political parties. What the Prime Minister did not tell the people is the fact that future political parties must themselves undergo yet another metamorphosis.

According to Article 91 of the new Constitution which deals with the basic requirements for political parties, every political party shall have a national character as prescribed by an Act of Parliament which will ensure that all political parties shall have a democratically elected governing body; and shall also promote and uphold national unity while abiding by the democratic principles of good governance which will promote and practise democracy through regular, fair and free elections within the party.

This means the Prime Minister was telling the people that the days of political parties that belonged to corrupt leaders who closed all party doors to their political enemies and opened them only for their sycophants are gone forever. Corruption promoted by tribal political parties will also have to disappear because the new Constitution demands that all political parties must respect the right of all persons to participate in the political process, including minorities and marginalized groups.

The new Constitution demands all political parties to respect and promote human rights, fundamental freedoms, and gender equality and equity while subscribing to and observing the code of conduct for political parties. All these requirements by the new Constitution mean only one thing— that there will be very little room in future party leadership for people who are either corrupt or intend to get into leadership positions through corruption in order to enrich themselves.

President Kibaki and Prime Minister Raila Odinga are not the only leaders who called for the promotion of integrity while operationalising the new Constitution. Vice President Kalonzo Musyoka said more or less the same thing when he told Kenyans at Uhuru Park that under the new Constitutional order, we will be able to reclaim our dignity as a people. He said justice would be guaranteed for all and leaders would be accountable to the people.

As Mwai Kibaki , Raila Odinga and Kalonzo Musyoka were talking about the need to follow the new Constitution’s demands on leadership and integrity , Parliament was challenged to put the Kenyan leaders’ words into practice by refusing to swear in MPs who had pending cases on corruption in court . The suggestion came in a form a question to the Speaker of the National Assembly from the MP for Ikolomani, Dr. Bonny Khaluale.

The Speaker of the National Assembly, Kenneth Marende, answered Khaluale through a Communication from the Chair when he told MPs that Chapter Six of the new Constitution which addresses matters of leadership and integrity was in fact operational after the promulgation of the new Constitution. He explained that, the importance of Chapter Six could not be overemphasized. According to the Speaker this chapter was a key pillar to the new constitutional order seeking to uproot the culture of impunity and bad governance.

Marende said the Chapter sought to ensure that only persons of integrity assented to or remained in certain public offices. It, therefore, was very much in keeping with the letter and spirit of the Constitution that questions should be raised on the application of the provisions of Chapter Six. In respect of concerns about the eligibility to be sworn in of Members who have cases pending in court, Mr. Marende ruled that there was no provision in the Constitution barring a state officer from being sworn in on the grounds that the State officer had a pending court case.

The Speaker then went ahead and swore in all MPs including those with pending corruption cases in court. Be that as it may that was not the end of matter. The issue of leadership and integrity will be a subject of many hot debates in future. When the right judges have taken up their positions in a clean Bench many of our leader’s right to lead will rightfully be challenged according to the new Constitution.

Constitution: Kalenjins in leadership crisis

There is a serious leadership crisis among the most powerful ethnic group in the Rift Valley. The Kalenjins are now divided into smaller ethnic subgroups because their leaders took different stands in the just concluded referendum. As the country welcomes the new Constitution in happiness and unity, the Kalenjins are torn apart and not quite sure whether to be joyful or sad about the latest development in the country.

A very large number of them, in fact well over one million people, were mobilized by their leaders to reject the Proposed Constitution. Now the very same leaders are making a lot of noise to be included in the Constitution Implementation Oversight Committee (CIOC); and to have some Kalenjins in the Commission on the Implementation of the Constitution (CIC). The Commission will be made up of experts who will really be doing the donkey’s work in drafting the new legislation to be enacted by Parliament to enable a smooth operationalization of the new constitution.

The decision to have some Kalenjins included in CIC will be that of the President and the Prime Minister following the advice of the strong team of technocrats who have so far given the two principals very wise counsel that has tended to unite, rather than divide, the country. If there will be any Kalenjin in the CIC it will depend entirely on the credentials of the individual concerned. The community has many distinguished lawyers who obviously qualify to be members of the CIC. What Kibaki and Raila will be looking for are experts that will expedite the process of drafting the required legislation instead of rocking the boat to please certain political leaders.

Whether or not there will be a Kalenjin in the CIOC will depend on the powerful political parties in Parliament – the ODM and PNU. So far there is a threat to exclude the Kalenjins who opposed the Proposed Constitution, which means the Kalenjins who will sit in the CIOC will come from the group that supported the Proposed Constitution which includes Sally Kosgei, Helen Sambili and Franklin Bett.

These are the three leaders who tried to unite the Kalenjins to back the Proposed Constitution like the rest of the country. They are also likely to end up holding top leadership positions either as Senators or Governors of the new counties that have been formed in the Rift Valley. The political tug-of-war in the former Rift Valley will now change with time, giving the supporters of the new Constitution prominent positions in the new set up.

It should not be hard for the million Kalenjins to determine who among their leaders is telling them the truth this time. It so happens that since independence they have been grouped together and made to take joint political decisions based entirely on the pronouncement of individuals with their own political ambition and greed in mind. First they were made to join the Kenya African Democratic Union by Daniel Toroitich arap Moi log before independence. When independence was achieved they had a powerful Rift Valley region which they had to dismantle when Moi decided to join the Kenya African National Union under Jomo Kenyatta.

Moi, as the undisputed leader of the Kalenjins since 1957 when he first represented them in the Legislative Council which was commonly known as Legco , has made his people follow him blindly even when he was making wrong political decisions. In 2002 when he stepped down as the Head of State he led his entire community to back Uhuru Kenyatta, who was his handpicked contestant, as the presidential candidate for the Kenya African National Union. Though Uhuru managed to get well over 1.8 million votes, Mwai Kibaki of the National Rainbow Coalition was elected President with more than 3.6 million votes. Kalenjins were on the wrong side of history because of Moi.

Be that as it may, there is probably no single Kalenjin leader who has done more for his people than Daniel arap Moi who built many schools and roads in the Kalenjin Rift Valley as opposed to the Pokot, Masai, Samburu or Turkana Rift Valley. Using his powers as the President of Kenya, Moi made sure at least three national Universities – Moi University, Egerton University and Kabarak University-- were established in the Kalenjin Rift Valley. This elevated his people to a level where they can today scholastically challenge other ethnic groups such as the Kikuyus and Luos who have been exposed to education for a longer period.

Despite such a big contribution by Daniel arap Moi to the welfare of the Kalenjin community, they decided to ignore him in 2007 elections when he advised them to vote for Mwai Kibaki of PNU instead of Raila Odinga of Orange Democratic Party (ODM). At that time the Kalenjins followed the leadership of a young vibrant politician, William Ruto, who literally pulled the whole community away from Moi into the ODM where he strongly backed Raila Odinga. Unfortunately the Raila- Ruto relationship did not last long and the Kalenjin community was massively pulled out of ODM’s stand to support “YES” group in the just ended referendum into the “NO” team led by William Ruto.

When the “NO” team was badly defeated the Kalenjins found themselves in the wrong side of history yet again. This time they have very serious problem to overcome. To begin with Daniel arap Moi had made the Kalenjin erroneously believe the entire Rift Valley belonged to them. This belief was unfortunately enforced by the stand taken by William Ruto as the new leader of the Kalenjins during the referendum campaign.

The implementation of the new Constitution has opened the Kalenjin’s eyes to the truth which reveals that the Rift Valley belongs to other communities as much as it belongs to them. The new Constitution divides the massive Rift Valley into 14 counties, out of which only seven could be considered to belong to the Kalenjins.

Besides that, the dominant Kalenjin sub tribes of Nandi and Kipsigis find themselves in two different counties while other Kalenjin sub tribes of Elgeyos and the Marakwets are now in yet another county. Pokots, who were normally grouped together with the Kalenjins, are now in their own county. In other words the new Constitution has divided the Kalenjins in smaller counties in which the sub tribes will have to determine their own destinies in a new set up.

Obviously the new arrangement annoys Daniel arap Moi who sees the fruits of his entire political career going down the drain. The new setup will also see the Kalenjins seeking new leaders from their own sub tribes who will end up either in the Senate or as Governors of the seven major Kalenjin counties. In the County of Trans Nzoia, for example, there is likely to be a very tough fight between the only Kalenjin leader of the area, Joshua Kituny, and the two local Luhya leaders Eugene Wamalwa and Noah Wekesa. Between these three one may remain as a member of the less prestigious National Assembly while the other two occupy the Senate and governorship positions respectively.

Eugene Wamalwa, who has declared some interest in the presidency of the country, may change is mind after discovering the race is for bigger giants and end up seeking a seat in the Senate. Between Wekesa and Kituny the fight for governorship would see the Kalenjin losing to the majority Luhyas of the county which overwhelmingly supported the Proposed Constitution.

In Uasin Gishu where William Ruto is most popular the fight for governorship will probably be between the MP for Eldoret South, Peris Chepchumba and the MP for Eldoret East, Margaret Kamar. Ruto, who will be fighting for the Presidency may sponsor a younger candidates for the Senate seat. In the Elgeyo-Marakwet County the fight for the Senate seat will be between several giants.

These will probably be the MP for Marakwet West, Boaz Kaino, the MP for Marakwet East, Linah Jebi Kilimo, the MP for Keiyo South, Jackson Kiptanui and the MP for Keiyo North, Lucas Chepkitony. In that race may be the revitalized Nicholas Biwott is likely to show up again and try his luck in the new contest. The seat for the Governorship of the Uasin Gishu county will be contested between the many professionals from the area who are likely to leave Nairobi to go back home in the rich rural area to seek new leadership positions .

May be the hottest contest for the Senate will be fought in Nandi County where the MP for Emgwen, Elijah Langat is likely to be challenged by the MP for Aldai, Sally Kosgei , who is likely to be joined in the race by the MP for Mosop, David Koech and the MP for Tinderet, Henry Kosgey. The county’s Governorship is likely to see a bitter struggle between the candidates named above who may decide to leave the hotly contested Senate seat. But the new top job of the County is also likely to attract new faces of top Nandi businessmen, academicians, civil servants and professionals who are sure to join the bitter struggle.

In Baringo the Senate seat, like that of the new Governor is bound to attract the MP for Baringo Central, Sammy Mwaita, the MP for Baringo North, William Kipkiror , the MP for Baringo East , Asman Kamama, MP for Mogotio, Helen Sambili and the MP for Eldama Ravine , Mosses Lesonet. This scenario is likely to be repeated in the Kericho County where the MP for Kipkalion, Kiprono Magerer, the MP for Ainamoi, Benjamin Langat, MP for Buret, Franklin Bett and the MP for Belgut, Charles Keter, will battle it out for the two seats.

In the Bomet County the scenario is likely to be repeated when the MP for Chepalungu, Isaac Ruto is likely to fight the MP for Bomet, Beatrice Kones, MP for Konoin, Julius Kones and MP for Sotik Joyce Laboso for the same two seats.

Given the fact that the above developments are inevitable, the Kalenjins are about to start bitter confrontations for Senate representation and for the governorships of the seven counties. A healthy competition of developing the new counties is likely to come up with new leaderships associated with economic development rather than political ambitions of individual politicians. Whatever the case may be the Kalenjin today are about to undergo a major leadership change to join the rest of the country in accepting the new Constitution for Kenya.

Constitution: Catholics fighting losing battle

The Catholic Church in Kenya is fighting a losing battle. It has taken the most uncompromising stand of continuing to oppose the new Constitution of Kenya even when millions of Kenyans have ratified it. The Church hopes that something can still be done to amend the Constitution before its promulgation on the August 27. But the Church knows very well it is building castles in the air.

In a statement by 25 Bishops issued on July 28 at the peak of the campaign for and against the Proposed Constitution the Catholic Church clearly said: “We cannot place our hopes on the fact that the document can be amended after the referendum. Looking at the proposed draft however, amending this document will be an enormous task.”

To try and convince as many Catholics as possible to vote “NO” the Bishops explained to the believers about popular amendment which, they acknowledged, would require one million signatures of registered voters. They explained in their own press statement that amendment bill must be approved by the majority of 47 counties. The Bishop’s statement continued to explain to the believers that after the approval by the majority of 47 counties the amendment would then be tabled in the two houses of parliament before being submitted to the people for another referendum.

After this explanation the Bishops then concluded: “This process cannot take place before counties are in existence, and they will only exist in this country after the 2012 general elections.” So when the Bishops make so much noise now and continue to demand amendments well after the ratification of the Proposed Constitution they know very well that all that they can achieve is cheap publicity which will not change the will of the people.

Yet the Catholic Church in Kenya is extremely powerful. It has millions of converts who are scattered all over the country. The Church’s contribution to the country’s educational and heath matters has earned it respect everywhere even among non Catholics. Catholic universities, schools, like their hospitals in many parts of the country, are full of students and patients of the Muslim and other religious faiths. The official word from the Catholic Church carries a lot of weight in Government circles and many other institutions. It is therefore most amazing that the command from Kenya Episcopal Conference to everyone who could hear them to reject the Proposed Constitution was overwhelmingly rejected itself. Among those who rejected it are millions of Catholic believers.

Because of the continued complaints by the country’s most powerful religious institution a lot of Kenyans will probably look at the nature of the demands by the Catholic Church to see if they merit any consideration. In the statement of July 28 the Bishop said: “Brothers and Sisters, we have raised our concerns about Article 26(4) which by other written laws opens the gates to abortion on demand. The life of a person begins at conception, and unborn babies are therefore human beings, and have a right to life and this document declares that in essence, legislators and “health professionals” should have a free hand in ending the lives of these human beings.”

The Bishops must be very eager to know why their passionate appeal to their own followers was rejected with such a forceful disgust. The rejection by the Catholic flock of the demand from their own Bishops to throw the Proposed Constitution into the dustbin of history has revealed for the first time that Kenyans cannot be led blindly by the use of ecclesiastic powers. Whereas the respect for the Catholic Church is unquestionable everywhere in the country, its attempt to mislead the people, for whatever reasons, is greeted with hostility if the people suspect the Church is misleading them.

In this particular case the use of the words “open gates to abortion on demand” by the Bishops did go down very well with the people who must have read Article 26 (4) for themselves. That specific Article in the new Constitution says: “Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by
any other written law.” After evaluating the truth in their Bishops’ statement and comparing it with what is actually provided for in the Constitution, Catholic voters decided to back the Constitution.

Rather than taking a confrontational and adversarial stand against the Government and demanding an immediate amendment to the new Constitution , the Catholic Bishops would do very well to try and convince their own flock, which seems to be against the firm stand the religious leaders are taking, to see their point of view. After all it is the ordinary people within the Catholic Church who are faced with the problem of life threatening pregnancies which require urgent medical attention. They still need a lot of persuasion to put what their religious leaders say into practice.

The other aspect of the new Constitution which disturbs the Catholic Bishops concerns the Kadhi courts. The Bishops say: “We have also raised other areas of concern that this constitution fails to safeguard. These include the EQUALITY of all persons and creeds under the law, which the entrenching of Kadhi’s courts in the constitution denies. We have no problem with our Muslim brothers and sisters exercising their religious freedom. All we wish is that it be done in equity, by pursuing what has been done the world over, through an act of parliament, and for this we made specific proposals to the Committee of Experts.”

The Catholic Church must have seriously disturbed its flock when it said the new Constitution did not safeguard “equality of all persons and creeds under the law”. To find out whether their Bishops were indeed telling the truth the Catholic believers and voters must have looked at Article 27 which deals with Equality and freedom from discrimination. To their amazement the Catholic voters must have been shocked when they discovered the new Constitution says that every person is equal before the law and has the right to equal protection and equal benefit of the law.

The Catholics voters must have been even more shocked when they found out the new Constitution says that equality includes the full and equal enjoyment of all rights and fundamental freedoms giving women and men the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. This realization must have been a major contributing factor to their rejection of the call from their Bishops and instead strengthened their determination to ratify the proposed Constitution which is now sure to be the supreme law of the land.

When the Catholic Church tells its flock that the inclusion of Kadhi courts in the Constitution discriminates against Christians the believers must be wondering who is telling the truth because the new Constitution clearly says the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy,
marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

As a major institution that runs universities, schools and hospitals throughout the country the Catholic Church must really be aware of the fact that Muslims in Kenya have been marginalized for a very long time. People with Islamic names have been ejected in many Christian schools.

Recognizing the Kadhi courts through an act of Parliament, as the Church suggests, is a sure way of repealing that law at the first available opportunity, given the fact the very word Muslim creates a stigmatized situation that makes some true Kenyans with Muslim names being segregated from various aspects of society. The only way to protect the Kadhi court is to make them part of the Judiciary in the Constitution. They are, after all, very subordinate courts that deal only with personal matters of marriage, divorce and inheritance.

Refusing the Muslims the right to have their own Kadhi courts would be discriminating against them. The new Constitution says a person shall not discriminate directly or indirectly against another person on any of the grounds specified above. The Catholic Church must be very worried about the plans of the new Constitution to take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.

This means Catholic schools and universities cannot deny Muslims and other Christians any opportunity to study or teach. During the campaign a story was published in one of the local dailies exposing the dismissal of a lecturer at the Catholic University for threatening to vote “YES” for the proposed Constitution. Such behaviour will never be tolerated by the new Constitution.

Catholic voters must have wondered whether their Church was telling the truth when it claimed the inclusion of the Kadhi courts in the Constitution amounted to “elevation of one religious over another”. This allegation was not supported by the new Constitution which clearly says in Article 32 on Freedom of Conscience, Religion, beliefs and Opinion that every person has the right to freedom of conscience, religion, thought, belief and opinion. It also says that every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship.

When the Catholic voters realized that the new Constitution says a person may not be denied access to any institution, employment or facility, or the enjoyment of any right, because of the person’s belief or religion they realized that their religion, like all others, was protected by the new Constitution which also says a person shall not be compelled to act, or engage in any act, that is contrary to the person’s belief or religion. One of the reasons the Proposed Constitution was accepted by such a big number of voters is the fact that millions of Catholic voters supported it. Catholic Bishops still opposing the new Constitution are fighting a losing battle.

Constitution: Amendment almost impossible

A lot of noise is being made by the people who rejected the Proposed Constitution about the need to amend the new Constitution before it is implemented. Doing so will be illegal and unconstitutional. The wise among the proponents of amendments have called for amendments to be made constitutionally. But that, according to Nzamba Kitonga, the chairman of the CoE, will take at least ten years.

For the Constitution to be amended according to its own stipulated procedure its Articles 255,256 and 257 must be followed. These are very cumbersome procedures that are deliberately designed to take a long time so as to give everyone ample opportunity to weigh the pros and cons of amending the new Constitution. When William Ruto and the NCCK leaders talk of following the stipulated methods of amending the new Constitution, they appear to be reasonable. Unfortunately the Catholic Church seems to be impatient and wants the amendment done immediately. Whatever steps the Government takes the law must be followed in the manner six million Kenyans chose.

Article 255(1) says amendment to the new Constitution shall be enacted according to Parliamentary initiative or by popular initiative and approved by referendum if the amendment relates to the supremacy of the new Constitution ; the territory of Kenya; the sovereignty of the people; the national values and principles of governance which include patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized; good governance, integrity, transparency and accountability; and sustainable development.

Amendment must also be approved by referendum if they relate to the Bill of Rights;
the term of office of the President; the independence of the Judiciary and the commissions and independent offices to which Chapter Fifteen applies; the functions of Parliament; the objects, principles and structure of devolved government; or the provisions of the Chapter on amendment.

According to Article 255(2) a proposed amendment shall be approved by a referendum under clause (1) if at least twenty per cent of the registered voters in each of at least half of the counties vote in the referendum; and the amendment is supported by a simple majority of the citizens voting in the referendum.

An amendment to the New Constitution that does not relate to a matters specified above shall be enacted either by Parliament, in accordance with Article 256, which deals with amendment through Parliamentary initiative; or by the people and Parliament, in accordance with Article 257 which deals with amendment by popular initiative.

Article 256 (5) says if a Bill to amend this Constitution proposes an amendment relating to a matter specified in Article 255 (1) the President shall, before assenting to the Bill, request the Independent Electoral and Boundaries Commission to conduct, within ninety days, a national referendum for approval of the Bill; and within thirty days after the chairperson of the Independent Electoral and Boundaries Commission has certified to the President that the Bill has been approved in accordance with Article 255 (2), the President shall assent to the Bill and cause it to be published.

The new Constitution can also be amended by popular initiative by collecting a million signatures from registered voters and then make a general suggestion about the amendment or draft a bill. The new Constitution says if a popular initiative is in the form of a general suggestion, the promoters of that popular initiative shall formulate it into a draft Bill and then deliver the draft Bill and the supporting signatures to the Independent Electoral and Boundaries Commission, which shall verify that the initiative is supported by at least one million registered voters.

It also says if the Independent Electoral and Boundaries Commission is satisfied that the initiative meets the requirements of Article 257, which deals with amendment through popular initiative, the Commission shall then submit the draft Bill to each county assembly for consideration within three months after the date it was submitted by the Commission.

The Constitution adds that if a county assembly approves the draft Bill within three
months after the date it was submitted by the Commission, the Speaker of the county assembly shall deliver a copy of the draft Bill jointly to the Speakers of the two Houses of Parliament, with a certificate that the county assembly has approved it. If a draft Bill has been approved by a majority of the county assemblies, it shall be introduced in Parliament without delay; and then a Bill under Article 257 is passed by Parliament if supported by a majority of the members of each House. The new Constitution then explains if Parliament passes the Bill, it shall be submitted to the President for assent in accordance with Articles 256 (4) and (5).

But the new Constitution explains if either House of Parliament fails to pass the Bill, or the Bill relates to a matter specified in 255 (1), the proposed amendment shall be submitted to the people in a referendum.

All these parts of the new Constitution prove that Nzamba Kitonga is right that it may take well over ten years before it is amended. One important aspect about the amendment of the new Constitution is it involves the new set up of Parliament with two new chambers which have yet to be established. William Ruto and his church friends know very well that some parts of the new Constitution they want amended are among those that require the approval of national referendum.

Since the new Constitution will be with us for a very long time to come, it is prudent for all Kenyans to learn to live with it. This is why even though there is a very good reason to bar William Ruto and his friends from participating in the implementation process, way must be found of involving the “NO” group in the task ahead. Weather they like it or not all Kenyans have to accept the new Constitution as it is or else wait until all institutions needed to amend it have been established and then start the grueling job of fowling the right procedure to amend it.

There is little doubt that the people who said “NO” to the Proposed Constitution don’t like the developments in the country at the moment. Some of them are well known mischief makers. It is therefore very important to keep a very close watch on what their next step will be like. Some of them may engage in activities that will make implementation of the new Constitution extremely difficult.

The special cabinet team that will be looking at the implementation process has closed the door to the Ministers who said “NO” to the Proposed Constitution. The temptation by Parliamentary Select Committee to be known as the Constitution Implementation Oversight Committee (CIOC) to do the same will be high, but MPs would be advised to look at the spirit of the new Constitution and what it says about inclusiveness. The Commission on the Implementation of the Constitution (CIC) however will demand the services of experts who genuinely want to help this country frame the various legislations of the new Constitution without any hidden motive.

Following the well known Lyndon Johnson tactic of keeping close to one’s enemies, Prime Minister Raila Odinga and President Mwai Kibaki must have concluded it is safer to have William Ruto in the Cabinet, where they can exercise some form of control over him, rather than fire him and let him cause serious damage when he is plotting against the Government and the new Constitution from the outside. Using that tactic Lyndon Johnson refused to fire the dread FBI boss Edgar Hoover and when he was asked why the American President said it is “better to have him inside the tent pissing out, than outside the tent pissing in.”

MPs should think of that clever tactic before locking William Ruto completely out of CIOC.

Constitution: Amendment seekers torn apart

The “NO” team is now torn apart. The unity they had that brought together Kalenjins, Kurias, Mberees, Kambas, and various church groups has now totally disintegrated. William Ruto’s thanksgiving luncheon organized at the Arboretum on Saturday 14th August spilled the beans that exposed the fact that the fragile unity that made them share platforms in various parts of the country condemning the Proposed Constitution has finally evaporated. Not a single church leader attended the celebrations which indicated a rift has now erupted between the churches and William Ruto.

The “NO” team was in fact composed of people who rejected the Proposed Constitution for very different reasons. The rich in it, which included Daniel arap Moi and William Ruto, were only opposed to the Propose Constitution because of its land chapter which will introduce justice to land matters to the benefit of all Kenyans. The Catholics were more disturbed by the Article in the Bill of Rights concerning the right to life, which, unfortunately they chose to misinterpret. The mainstream protestant churches were not happy with the provisions on the Kadhi courts, which they also misinterpreted.

The evangelical churches were opposed to the Kadhi courts because they were told to do so by American conservative rightist churches that wanted to fight President Barack Obama in his father’s land. The American churches have confessed that they paid a lot of money to the Kenyan evangelical churches to reject the Proposed Constitution. The Americans misinterpreted the Proposed Constitution by suggesting that Kadhi courts would open doors to Muslim fundamentalism in Kenya. Because they wanted to monetarily benefit from the Americans , the Kenyan evangelical church leaders never correct the situation.

The Mberees and Kurias opposed the Proposed Constitution because it did not create counties for them in the same manner as in the Harmonized Draft of 17th November 2009. The Kambas opposed the Proposed Constitution because they believed doing so would create a more conducive political atmosphere for the Vice President Kalonzo Musyoka. With the benefit of the hindsight of recent events it appears the Kamba strategy worked wonders and earned Kalonzo the leadership of Government Business in Parliament which comes with the chairmanship of the powerful House Business Committee. (HBC)

Now that the result of the referendum are known the groups in the “NO” camp have gone back to their various institutions and tribal groupings to licking their wounds separately. The disintegration became clear on August 5th when the Minister for Higher Education, William Ruto, was among the first, without consulting the churches, to concede defeat and appealed for urgent steps to amend the new Constitution. The move by Ruto must have angered the churches who boycotted his thanksgiving luncheon.

In a statement issued on the 11th of August after deliberations at the Jumuia Conference and Country Home in Limuru the NCCK said that it trusted that the Government leadership would fulfill the promises they made during the referendum campaigns that the contentious issues were acknowledged and would be resolved after the referendum. But the NCCK was quick to add: “We at the NCCK undertake to contribute fully to all the efforts made to resolve these issues using the mechanisms provided for in the new Constitution.”

Though the NCCK believes that “the amendment of the contentious issues will and should be part of the implementation process”, they realize that that will not be possible in the near future and may in fact take as long as ten years which the chairman of the CoE, Nzamba Kitonga revealed was the shortest period possible before any amendment of the new Constitution can be contemplated.

Apart from that the NCCK usage of term “Contentious Issues” is erroneous as it does not agree with the interpretation of the CoE’s meaning of the term in the context of the Proposed Constitution. According to the experts the contentious issues of the Proposed Constitution only concerned the Executive and Legislature; the devolution of powers and bringing the new Constitution into effect as it is described in the transitional clauses. At no time during the long period that Kenyans have devoted to the debate on the need for a new constitution were Kadhi courts, land issues or abortion officially considered to be contentious issues.

The Nzamba Kitonga team did not exclude the Kadhi courts, land and abortion issues from the list of the three officially accepted contentious issues out of malice. The team went through a very thorough legal scrutiny of various proposed constitutions to determine what was universally accepted as contentious issues. Apart from that, the Constitution of Kenya Review Act of 2008 mandated the CoE to identify the contentious issues, making the NCCK definition of contentious issues illegal.

Having been mandated by the law to identify the contentious issues the CoE took a lot of trouble to examine a very wide rage of Kenyans’ views before listing the three official contentious issues in the Proposed Constitution. They started by scrutinizing various draft constitutions that have come in existence as Kenyans debated on constitution. These included the Constitution of Kenya Review Commission Draft of 2002; the Draft Constitution of Kenya of 2004 which was popularly known as the Bomas Draft; and the Proposed Constitution of 2005.

Before identifying the real contentious issues the Nzamba Kitonga team also studied the views expressed by Kenyans as collected and collated by the Constitution of Kenya Review Commission of Prof. Yash Pal Ghai and then examined documents reflecting political agreement on critical constitutional questions such as the Naivasha Accord. The Nzamba Kitonga team looked at both the Kriegler and Waki reports and then examined thoroughly the various memoranda on the same subject submitted to the CoE. After a rigorous debate among themselves the CoE unanimously agreed on the three contentious issues named above.

The contentious issues named by the churches and the rich land owners are therefore fake ones. They should not be taken seriously by those who will have the responsibility of implementing the new Constitution. If however Kenyans in future, which is after at least ten years from today, want to amend the new Constitution the procedure to follow is very well documented in the new Constitution.

What Kenyans cannot stomach is the continued demand to have the new Constitution amended before it is promulgated, which is a legal impossibility. When the people demanding the amendment of the new Constitution claim they want to do so through the stipulated method in it, they are not being honest. If they were all honestly concerned about the implementation of the new Constitution in an inclusive manner then they would keep quiet for the time being, wait until the new Constitution is promulgated and see how it is actually operationalised. Then they would have good reasons to call for amendments, if those reasons will still be valid ten years from today.

Today they are only engaging is a face saving exercise to save the institutions they head. Unfortunately for them, the referendum has taught Kenyans a great lesson: That they are the real bosses in Kenya and what they want becomes the law. As far as the Constitution they want is concerned, they have already spoken. Very loudly indeed.