As Kenya goes into the new year, the country’s political landscape remains unchanged in at least one key respect: a new Constitution is as elusive as ever.
While President Mwai Kibaki came to power in December 2002 promising that a new Constitution would be in place within 100 days, nothing of the sort happened. A second deadline, June 30 2003, also slipped by unobserved — as did others.
Now, civil society groups that spent 2004 criticising the government’s failure to produce the revised document are gearing up for renewed battle in 2005.
“The year 2005 is likely to see more confrontation between civil society and government over delivery of a new Constitution before the end of the year. Kenyans are tired of being given false promises … What we want to do is to force the government to give us a new Constitution immediately,” says Kepta Ombati, chief executive of the National Convention Executive Council.
The council is an umbrella body for organisations that are pushing for constitutional reform.
At the heart of the delay is a power struggle between two parties within the ruling National Rainbow Coalition (Narc): the Liberal Democratic Party (LDP) and the National Alliance Party of Kenya (NAK).
These groups are at odds over one of the most important amendments proposed by the Constitution of Kenya Review Commission, namely the creation of a prime minister’s post, and the shifting of certain presidential powers to this office. Under the present Constitution, drawn up before independence from Britain in 1963, the head of state enjoys wide-ranging powers that some claim have been subject to abuse.
Appointed in 2000, the commission canvassed Kenyans across the country in an effort to discover what form they wanted their new Constitution to take. It subsequently issued a draft Constitution in September 2002; this document was submitted to a National Constitutional Conference (NCC) for discussion.
More than 600 delegates from Parliament, religious and NGOs participated in the NCC, which began work in 2003 at a venue called Bomas of Kenya on the outskirts of the capital, Nairobi.
While the conference formally adopted the draft Constitution earlier this year, the NAK vociferously opposes the trimming of presidential powers.
The LDP, under the leadership of Minister of Roads and Public Works Raila Odinga, supports the amendment. Reports have circulated that Odinga was promised the post of prime minister by Kabaki, in return for supporting the Narc in the 2002 elections.
“We are organising ourselves to take the mantle from politicians who have run the constitutional review process into a ditch because they are interested in protecting their interests,” says Ombati, adding: “The Constitution … is about re-engineering this nation, and cannot be left to politicians alone.”
Kenyan law initially allowed for the draft to be adopted or rejected in its entirety by Parliament, which had no power to make any alterations to the revised Constitution.
Earlier this year, legislators opposed to the reduction of presidential powers tabled two Bills that sought to give Parliament the right to amend parts of the draft, raising concerns that the inclusive constitutional review process would be undermined.
These Bills were later withdrawn under pressure from civil society. However, the Consensus Bill — passed in November — allows Parliament to alter the draft Constitution with a simply legislative majority. Rights activists claim this has left the new Constitution open to manipulation for political ends.
The government has also announced that a national referendum on the final draft of the proposed constitution will be held in October this year.
“The government’s efforts towards improving the welfare of Kenyans have been unnecessarily distracted by the review process and we would like to bring it to an end in order to concentrate on what we were elected for: to improve the lives of Kenyans,” said Minister of Justice and Constitutional Affairs Kiraitu Murungi in a full-page advertisement that appeared in a local daily on December 24.
Activists say they won’t allow the government to push through a version of the Constitution that does not reflect the views of Kenyans.
“We are soon going to embark on a nationwide campaign to hold civic education, using all media available — including television, radio, newspapers [and] community gatherings … It is important that people make informed choices when voting,” says Ombati.
His words are echoed by Leslie Mwachiro, chairperson of Bomas Katiba Watch — a group made up of delegates to the NCC that is lobbying for the original draft document to be adopted.
Mwachiro has pledged “mass action” next year in support of Katiba Watch’s demands, saying: “It is for Kenyans to decide when they want a new Constitution and not a few people within the government.” — IPS