Constitution: No room for dialogue

The ratification of the Proposed Constitution by the more than six million Kenyans makes it the property of the people. It cannot be changed through any dialogue by a group of clergymen and politicians. The noise being made by Vice President Kalonzo Musyoka and William Ruto backed by a group of church leaders headed by Cardinal John Njue of the Catholic Church is, therefore, just that: Noise!

But that noise can change into very serious threat to the unity of this country if it is sustained between now and the date of promulgation of the new Constitution which should be known as the Constitution Day and probably be a public holiday from now on in the place of Kenyatta Day, which should be named the Mashunjaa Day and be scrapped as a public holiday. Cardinal Njue, William Ruto, Daniel arap Moi and Kalonzo Musyoka know very well that the time to go back to the negotiating table over the content of the ratified Constitution of Kenya, passed on August 4th when the people made a final decision on that matter.That time is gone for good.

Though both Prime Minister Raila Odinga and President Mwai Kibaki now sound very reconciliatory when they talk of the need for peace and unity while the ratified Constitution is being implemented, none has suggested any possibility of reopening negotiations for amendments of any part of the new document. The closest to what is likely to happen was in fact revealed by Mwai Kibaki when he addressed a large crowd outside the Kenyatta International Conference Centre on August 5th when he assured the people he described as “brothers and sisters who voted against the Proposed Constitution” that their voices “have been heard.”

That is a very clever way of putting it. Kibaki was talking of the voices of the opponents of the Proposed Constitution having been heard. He was not talking of the future. He did not say the voices of the opponents of the Proposed Constitution will continue to be heard. As a matter of fact if anyone had any doubt about what Kibaki meant he repeated it in the same written speech when he said: “We shall continue with dialogue as we implement the new constitution. Those who have expressed different views about some of the issues in the new Constitution will continue to be listened to within the vibrant democratic institutions established under the new Constitution.”

To Mwai Kibaki “dialogue” means following the provision of the ratified Constitution to the letter because , as he said in the same speech :“ After all, democracy is about accepting the verdict of the majority while at the same time giving room for accommodation of the minority.” The President did not need to elaborate that the only way to accommodate the Rutos, Njues, Kalonzos and Mois was going to follow the provisions of the ratified Constitution.

As the President and the Prime Minister were celebrating the “YES” victory in Nairobi, the Minister for Tourism, Najib Balala, was doing the same in Mombasa where he also addressed a large crowd of jubilant Kenyans. The Minister’s words were more blunt and forthright – there was going to be no more negotiations on constitutional matters. The only concern of the Government, said the Minister, would be the implementation of the new Constitution.

The implementation of the new Constitution will, however, not be an easy matter. First there will be the whole issue of appointing two important teams that will play a major role in the implementation process. The first will be the establishment of the Parliamentary Select Committee to be known as the Constitution Implementation Oversight Committee (CIOC); and the second team will be the Commission on the Implementation of the ratified Constitution (CIC).

Both the CIOC and CIC will play very important roles in making sure that the will of the people of Kenya is obeyed and implemented legally without any malice or dirty tricks. It is therefore extremely important that the members of the two teams are people of impeccable uprightness in genuinely seeking reforms in Kenya. The CIOC will be made up of politicians and the CIC will be made up of technocrats of proven ability. While selecting members of the CIOC, MPs must be careful not to choose people who have been working against the new Constitution.

In Parliament there are a number of people who are still very bitter because their plan to wreck the entire process of getting Kenyans a new Constitution has been rejected by the wananchi. Their only hope is now to infiltrate the CIOC with a view of slowing down its deliberations, which will include overseeing the implementation of the ratified Constitution including receiving regular reports from CIC concerning preparation of legislation required by the ratified Constitution and any challenges in that regard.

Parliament is full of competent members who championed the reforms course while they were campaigning for the new Constitution. People like Martha Karua and Gitobu Imanyara are two of a handful of lawyers in the Legislature whose services in CIOC could be of great importance to the country.

Other important duties of the CIOC will be coordinating with the Attorney-General, the CIC and relevant parliamentary committees to ensure the timely introduction and passage of the legislation required by the ratified Constitution; and to take appropriate action on the reports including addressing any problems in the implementation of the ratified Constitution. This is not the kind of job that should be left in the hands of people who opposed the Proposed Constitution no matter how qualified they may be.

Parliament will have yet another important duty of approving the appointment by the President of members of the Commission on the Implementation of the ratified Constitution (CIC). The law prohibits Nzamba Kitonga and his team from being considered in this new lot otherwise he would have been the ideal person to serve in this very important commission whose duties include monitoring, facilitating and overseeing the development of legislation and administrative procedures required to implement the ratified Constitution.

The Commission will also be required to coordinate with the AG and the Kenya Law Reform Commission in preparing, for tabling in Parliament, the legislation required to implement the ratified Constitution. CIC will report regularly to the CIOC on progress in the implementation of the ratified Constitution; and any impediments to its implementation; and work with each constitutional commission to ensure that the letter and spirit of the ratified Constitution is respected.

There is very little doubt that the President, working with the Prime Minister, will appoint men and women of impeccable record as far as championing the course for the Proposed Constitution is concerned. Lawyers who did everything to frustrate the people’s efforts to get a new Constitution should be avoided by the President and the Prime Minister who should not touch them with barge pole.

Lawyers who backed the Proposed Constitution and worked hard to get it ratified by the people should be considered to become members of this important Commission. If the President and the Prime Minister make a mistake of appoint people who will work against the desires of the wananchi’s determination to get the ratified Constitution promulgated without any changes, then Parliament should correct such a mistake and reject the names of suspected people who would cause impediments to the burning desire of the people to constitutionally correct the injustices done to them.

All these are important legal steps that must be taken to makes sure the new Constitution is truly implemented in Kenya as soon as possible. It will be impossible to concentrate on this vital task if the country now starts talking about new dialogue. This therefore is not the time for dialogue. It is the time to fulfill the wishes of more than six million people who, as the majority, must have their way. When Kenya has a new Constitution, the minority, will continue to have their say about what needs to be amended.