Scramble to plot course for Kenyan constitutional review

Groups in Kenya that include politicians and activists say they will present plans to complete a review process aimed at providing a new Constitution for the East African country.

This follows their dismissal of the February 24 appointment of a presidential committee to jump-start the constitutional review, which stalled after citizens voted against a revamped Constitution that was subjected to a referendum last November.

While the government urged a ”yes” vote in the poll, opposition politicians and certain former ministers from the ruling coalition campaigned for a rejection of the draft.

Instead, opponents of the document threw their support behind an earlier version known as the ”Bomas draft”, which emerged from discussions that took place at the Bomas of Kenya cultural centre near the capital, Nairobi.

These discussions were held over 2003 and 2004 under the auspices of the National Constitutional Conference (NCC), which brought together 600 delegates from across the country. They based their talks on a draft prepared in 2002 by the Constitution of Kenya Review Commission, which had previously travelled throughout the country to collect the views of citizens on what form the new Constitution should take.

The main innovations of the Bomas draft included the downsizing of presidential authority: a post was created for a prime minister who would share power with the head of state.

This provision came after Kenyans interviewed by the review commission said they were opposed to an executive head of state, fearing a repeat of presidential abuses of power that had marred their country’s post-independence history.

However, the version of the Constitution that was ultimately put before citizens during the referendum was amended to restore presidential powers — even though Parliament was initially supposed to accept or reject the Bomas draft in its entirety.

The National Alliance Party of Kenya (NAK), an arm of the ruling coalition that includes President Mwai Kibaki and those close to him, was able to push through the Consensus Act — enabling NAK legislators to alter the Bomas draft in favour of a strong presidency, and a non-executive prime minister.

The groups that are seeking a way forward for the constitutional debate include civil society organisations and the Orange Democratic Movement (ODM) — a group comprising opposition politicians and former ministers from the Liberal Democratic Party, a member of the ruling National Rainbow Coalition. (During last year’s referendum, those opposed to the Constitution adopted the orange as their symbol, while those in favour of the draft used the banana.)

The Bomas draft, say the groups, will be at the heart of their strategy.

”I can assure you that a substantive part of our proposal is going to be founded on the Bomas draft,” Mutula Kilonzo, a leading ODM official, said.

”We shall also be taking advantage of the Bomas conference which adjourned sina die [until further notice]. This is a wonderful window that remains available for the country. This means that the Bomas conference can be recalled.”

According to Kilonzo, an ODM advisory committee established last Thursday will begin meeting this week to draw up proposals on how to proceed with the constitutional review.

Similarly, the Multi-Sectoral Forum (MSF), which comprises civil society organisations working to further democracy, human rights and good governance, is planning a national conference between May and June.

This meeting will discuss loopholes that allowed the government to tamper with the draft Constitution — despite claims that the version put forward by the NCC more truly reflected the aspirations of Kenyans.

”There will be a need to amend the Consensus Act that made it possible for the government to amend the Bomas draft, which was the popular draft,” said Paddy Onyango, executive director of the Citizens Coalition for Constitutional Change — a leading member of the MSF.

”It is this draft that will form the basis of our negotiations. I do not see any other document that can pass in terms of content.”

Still others are calling for the government to convene a meeting with the ODM, civil society organisations and religious groups. Their hope is that the Bomas draft could be used as a basis for resolving disputes between the various parties about the Constitution, and that a final draft could then be produced for presentation to Parliament — or to be put forward in a second referendum.

The government maintains it is committed to providing a new Constitution.

Martha Karua, the new Minister of Justice and Constitutional Affairs, said upon her appointment earlier this year that putting a new Constitution in place was at the head of government’s list of priorities. This would be achieved before the next general election in 2007, added Karua.

Kibaki’s administration, which came to power in December 2002, initially promised the country a new Constitution within its first 100 days in office. — IPS

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Joyce Mulama
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