New Constitution: The task ahead

Kenyans have a brand new Constitution now. But that means more work and less talk. The time for bickering should end today as true leaders of Kenya mobilize the people to forge a new unity and a meaningful reconciliation. Among the most important jobs to be done to make sure the new Constitution bears fruitful results will be the passing of a number of legislations promised by the Proposed Constitution.

All of a sudden Kenyans will now be looking at their MPs more closely to see who is and who is not working for the Constitution they have endorsed. If there will be a list of MPs who will be shown the door in the forthcoming elections of 2012, then those who opposed the Proposed Constitution in areas where the people endorsed it will top that list. These include people like Chris Okemo and Margaret Wambui. The stand they took to reject the Proposed Constitution will be used against them in 2012. A lot of them will try to become either Senators of Governors of their counties; but the record they have left behind during the just ended campaigns for and against the Constitution will simply work against them.

Just as I predicted long ago the new Constitution will strengthen the political status of Prime Minister Raila Odinga who is likely to be even more popular throughout the country before the 2012 elections. This is likely to make ODM the most powerful political organization in the entire country. It will not be surprising at all if more political giants join the ODM with the hope of becoming Raila’s running mate in the next general election.

Musalia Mudavadi is therefore likely to get new political enemies who will challenge his number two position to and as an automatic running mate of Raila Odinga. The role played by President Mwai Kibaki in preparing the ground for his departure will also be most interesting as he may surprise people by backing a Raila – Uhuru team. Right now it may not be surprising if Raila is officially appointed the Leader of Government Business in the Legislature where a lot of work will have to be done to operationalise the new Constitution.

According to Kibaki that position belongs to the Vice President; but Kalonzo Musyoka has badly let down the President by being a “watermelon” during the campaign for the Proposed Constitution. Kibaki may not trust Kalonzo Musyoka to lead Government business in Parliament which has a lot of work now that the new Constitution has been endorsed by the people on Kenya.


Even with the new Constitution accepted by the majority of the people in Kenya there is still a lot of work to be done. A number of laws must be passed to operationalise various recommendations made by the new supreme law. These include legislation in respect of culture which is found in Article 11(3) which says that Parliament shall pass legislation to ensure that communities receive compensation or royalties for the use of their culture and cultural heritage; Parliament shall also enact legislation to recognize and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by communities in Kenya.

Though the time frame for the passage of these legislations is five years, their advantages are so important to the people of Kenya whose culture has been exploited by foreigners for a very long time. The best examples of these are kangas , kikoys and kiondos which are indigenously Kenyan items which are now sold all over the world with little benefit to the people of Kenya . The second part of the legislation will protect plants such as miraa which are to be found in Meru but are sold in various parts of the world by people other than Merus. Paradoxically among the people who spoke most loudly against the Proposed Constitution are people who told the Merus that if they passed the Proposed Constitution they would lose all their miraa to the Somali people. The people of Igembe , therefore , rejected the Proposed Constitution when the rest of Gema communities overwhelmingly accepted it.

Another important law that must be passed to back the new Constitution concerns Article 18 on citizenship which says Parliament shall enact legislation—(a) prescribing procedures by which a person may become a citizen;(b) governing entry into and residence in Kenya; (c) providing for the status of permanent residents;(d) providing for voluntary renunciation of citizenship; (e) prescribing procedures for revocation of citizenship; (f) prescribing the duties and rights of citizens; and(g) generally giving effect to the provisions of the Chapter on citizenship. Though the time frame for this legislation is one year its importance is very clear. The uncontrolled manner in which foreigners obtained citizenship in Kenya was open to a lot of abuse and corruption which now must now be put to an end.

Other important legislations on the pipeline concern many suggestions made in the Bill of Rights beginning with Article 34 on freedom of the media which says freedom and independence of electronic, print and all other types of media is guaranteed, but does not extend to any expression specified in Article 33 (2) which says the right to freedom of expression does not extend to—(a) propaganda for war;(b) incitement to violence;(c) hate speech; or (d) advocacy of hatred that—(i) constitutes ethnic incitement, vilification of
others or incitement to cause harm; or(ii) is based on any ground of discrimination
specified or contemplated in Article 27 (4) which 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. The time frame for the implementation of this part of the Constitution is three years but there is no reason for media houses not operationalising it right now.

Section 34 (2) of the Constitution says the State shall not—(a) exercise control over or interfere with any person engaged in broadcasting, the production or circulation
of any publication or the dissemination of information by any medium; or (b) penalize any person for any opinion or view or the content of any broadcast, publication or dissemination. Obviously this part does not need to wait for three years to be implemented.

Article 34 (3) of the Constitution says broadcasting and other electronic media have freedom of establishment, subject only to licensing procedures that— (a) are necessary to regulate the airwaves and other forms of signal distribution; and (b) are independent of control by government, political interests or commercial interests. Article 34 (4) says all State-owned media shall—(a) be free to determine independently the editorial content
of their broadcasts or other communications;(b) be impartial; and(c) afford fair opportunity for the presentation of divergent views and dissenting opinions.

Kenyans will remember how the national radio and television stations were used by Kenyatta and Moi as instruments of suppression which totally denied the people the right to air their views freely. According Article 34 (5) Parliament shall within a period of three years enact legislation that provides for the establishment of a body, which shall—(a) be independent of control by government, political interests or commercial interests;(b) reflect the interests of all sections of the society; and (c) set media standards and regulate and monitor compliance with those standards.

Despite the negative aspect of the opponents of the Proposed Constitution during the emotional campaign period family life of Kenyans will considerably be improved within five years when Parliament enacts legislation that recognizes—(a) marriages concluded under any tradition, or system of religious, personal or family law; and (b) any system of personal and family law under any tradition, or adhered to by persons professing a particular religion, to the extent that any such marriages or systems of law are consistent with this Constitution. That means family injustices that have been taking place in the previous constitution will now be a thing of the past.

These are jut a few examples of legislations which need to be passed by Parliament to make sure the new Constitution takes roots in the country. The best place to campaign for the next election will be in Parliament. Those who will continue to oppose the new Constitution will only blame themselves when they are rejected by the progressive wananchi of Kenya in 2012.