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.