Constitution commission could miss deadline

It’s a drama that unfolds virtually minute by minute. As the day’s headlines reveal the latest twists and turns, Kenyans of all stripes are wondering, "Will it, or will it not?" Will the Constitution of Kenya Review Commission (CKRC) fulfil its mandate of delivering to the country a new constitution by the time the next election is held, widely expected at the end of this year? Or will Kenyans have to go to the polls under the old and flawed constitution? Or does it even make sense to tie the two together?

Late last month, CKRC chair Prof. Yash Pal Ghai has told Kenyans that the commission could not meet its October 4 deadline as mandated by law. A few weeks later, he said the commission could complete its work by December. Then it was revealed that commission members would decide, by the end of April, whether they would complete their work in December 2002 or April 2003. Next, Ghai was defending himself against calls from four of his commissioners that he resigns.

Volatility has characterized the government-appointed CKRC right from the start. The 29-member commission was created last year under the Constitution of Kenya Review Act 2001, which itself sprang from the Constitution of Kenya Review Commission Act of 1997 and subsequent amendments. The force behind the original legislation was the Inter-Parties Parliamentary Group (IPPG), formed in July 1997 following massive pressure from the public for constitutional reform.

Towards the end of 1999, religious leaders and civic groups came together at Ufungamano House to form a parallel constitutional reform process, one that they said would be more "people-driven." The subsequent 15-member People’s Commission of Kenya (PCK) collected views from its constituents, but eventually merged with the CKRC in June last year. Since that time, the commission has been plagued by many problems and setbacks. (See article in Africanews, March 2002).

And these flared up once more on March 27, when CKRC vice-chair Idha Salim announced that the commission needed more time "to produce a constitution that truly reflects the wishes of the people of Kenya." Since then, Kenyans have been debating the merits and drawbacks of choosing one of several alternatives. These include: extending CKRC’s term, which could mean extending the life of Parliament; holding elections without a new constitution; or devising an "interim" constitution in time for the general election that would contain minimal reforms that everyone would agree to.

Among Catholic church and human rights circles, most sources agree that Parliament should not be extended, but differ as to whether or not constitutional reform should be tied in with the election, and whether putting in place "minimal" reforms before the election is an acceptable alternative.

After celebrating Easter Mass at Holy Family Basilica, Archbishop Ndingi Mwana a'Nzeki of Nairobi told The Daily Nation, one of Kenya’s national newspapers, that he thinks that the elections should go ahead regardless of how constitutional reform is progressing. "What is wrong with the present Constitution that would stop us from voting?" Archbishop Ndingi told the paper. "The review team should ask for more time if they need to write a constitution that will serve us for generations to come."

Also reported in the press were the views of Bishops John Njue and Cornelius Korir, chairman and vice-chairman of the Kenya Episcopal Conference (KEC) respectively, who also said that constitutional review should not be tied with the upcoming elections. Bishop Njue had said any minimal reforms that are adopted now should be those that are in the final constitution.

But a local human rights lobby, the Kenya Human Rights Commission (KHRC), frowns upon these minimal reforms, since "elections under minimum reforms or an interim constitution would deny people’s participation," according to an April 5 statement put out by the organisation. Likewise, extending the life of Parliament "is against the constitution and will deny the people their democratic right to choose leaders every five years."

Minimal reforms are "unnecessary" and could possibly compromise the final product, says Fr. Vincent Wambugu, KEC secretary-general. He stresses that a new constitution can and should be drawn up before the election without overextending the life of Parliament. "We believe they [CKRC members] should be capable of delivering a new constitution, at least before the end of the current term of Parliament," he says, adding that Parliament’s term actually ends in February 2003, and that the differences leading to the commission missing its deadline "are not big."

However, the constitutional reform process should not be tied in with Parliament and the length of its term, one reason being that constitutional reform will affect many generations to come and should not be done to please the current Parliament, he says. "Let us divorce the two so that one is not pegged onto the other one."

The argument for tying constitutional reform to elections is a strong one. Sources speaking to AFRICANEWS have pointed out a number of areas within the constitution that would see the election taking place on a very uneven playing field.

If elections are held under the old constitution, the ruling Kenya Africa National Union (KANU) has an unfair advantage because the constitution makes no clear distinction between the government and the political party, says Joseph Jakait, program officer with the KEC’s Justice and Peace Commission. "The [KANU] government will use the state machinery, it will use the state money, it will use the civil servants, and it will use the state security to campaign for itself."

Also, the head of the executive - currently Kenyan President Daniel arap Moi - is the one who appoints people who sit on the Electoral Commission, the body charged with overseeing the elections. In the past, the government has re-sized electoral boundaries so that it could get the maximum representation in Parliament, he says.

The ruling party has "serious, entrenched advantages" in the upcoming election, agrees Jonah Njonge, programme assistant at the Centre for Governance and Development (CGD), a local non-government organisation involved in civic education.

To begin with, the president himself announces when the election will be, he said. In its election coverage, the government-owned Kenya Broadcasting Corporation (KBC) is biased in favour of the ruling party. Constituencies are unbalanced, the Electoral Commission is not independent in reality, and the provincial administration is appointed by the state rather than by the people living in those provinces, says Njonge.

"It’s difficult to see a free and fair election," he says.

Interestingly, despite the imbalances in favour of the incumbent that could be rectified under a new constitution, Njonge and Jakait call for constitutional reform to be made a separate process from the election. "The review process can’t be rushed because of the election," says Njonge. Jakait says that tying constitutional reform in with elections might enable members of the ruling party to change the constitution to favour them in the long term, even if they lose the next election.

In actual fact, it is the ruling party who has so far benefited from this whole wrangling over deadlines and will come out on top no matter want happens, argues Jakait. The old constitution makes it easy for the ruling party to have the upper hand in the elections. If elections are held under a new constitution, Parliament would most likely be extended, which buys KANU more time, said Jakait. "Either way the ruling party has benefited, because it means an extension [of power] of some sort."

And the delay is also benefiting commission members themselves, charges Jakait. "They are earning a lot," he says, adding that in addition to their salaries, commissioners receive cell phones, fancy cars, entertainment allowances, and other perks. "They deliberately delayed the whole process" so that they could get more money for themselves, said Jakait.

One of the most serious problems, however, is the fact that the whole constitutional reform process has not been entrenched within the constitution itself. "We are not secure," said Fr. Wambugu. "It (the process) can be dissolved anytime by the president... It is at the mercy of the powers that be."

Proposals on how to reform Kenya’s constitution are as many and varied as those advocating the changes. Essentially, the problem with the country’s current constitution is that it gives the president too much unchecked power.

Suggested reforms include: separating the powers of the executive, Parliament, and the judiciary; strengthening and enshrining Parliamentary committees into the constitution, which would enable Parliament to appoint and monitor judges, high-ranking civil servants, intelligence personnel, etc.; and creating mechanisms to monitor conflict-of-interest situations.