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May 2003

Controversy mars constitutional conference

Zachary Ochieng

The National Constitutional conference which kicked off at Nairobi’s Bomas of Kenya on April 28 has been mired in controversy, a fact that could delay the enactment of a new constitution expected to be ready by July.

Even before the 30 day conference could settle down for the business of the day, a Thika councillor went to court, seeking to stop the conference on the grounds that some delegates were not genuine. Although the suit was later dismissed by the High Court, it did not mark the end of the controversies.

The delegates at the conference demanded that their daily out of pocket allowances be increased from US$ 29 to US$ 143, a matter which was condemned by the Constitution of Kenya Review commissioners as well as other Kenyans who felt that the delegates were just out to enrich themselves. Their demands came despite the fact that they have been offered full board accommodation in top class hotels, transport to and from the venue as well as full medical cover.

More fireworks were to be witnessed when Nakuru town MP Mirugi Kariuki sought to derail the conference on a legal technicality, arguing that the conference was not entrenched in the current constitution. Although his motion was defeated, more acrimonious scenes are likely to be witnessed at the conference, if the debates that preceded it are anything to go by.

The draft constitution, which is to be debated at the conference contains some contentious sections. Unfortunately, after the National Rainbow Coalition (NARC) government came to power, a number of issues such as the age limit of the president and the office of the Prime minister became personalized. Thus, in discussing the age limit of a president, people tend to link it with president Mwai Kibaki while Roads and Public Works minister Raila Odinga has become synonymous with the prime minister’s post.

Though both president Kibaki and Odinga profess that the new constitution should be delinked from personalities, their supporters do not take them seriously. However, what cannot be denied is the fact that Odinga has been a serious contender for the Prime Minister’s post as per the Memorandum of Understanding (MOU) signed last year between his Liberal Democratic Party (LDP) and the National Alliance Party of Kenya (NAK), which amalgamated to form NARC.

But while the premiership was unanimously agreed upon by pro-reform forces prior to the last general election, the situation has since changed, with personal interests taking centre stage. Particularly opposed to the post are MPs from Kibaki’s central province, who see Odinga’s ascent to the premiership as a threat to the presidency. The same MPs have a feeling that the draft constitution, which seeks to limit the age of a person vying for the presidency to70, is an attempt to lock out Kibaki – now 72 – from seeking a second term in 2007.

The major bone of contention is the notion of an unelected Prime Minister who takes over executive powers up to and including chairing cabinet meetings and assigning duties to the cabinet ministers. According to the Draft Constitution, the Prime Minister is an ordinary MP or minister, who will assume office by virtue of being a leader of the majority party in parliament. For Subukia MP Koigi wa Wamwere and his Makueni counterpart Kivutha Kibwana, this arrangement could reduce an elected president to a ceremonial peg.

A number of observers doubt the ability of two offices holding executive powers to co-exist harmoniously. Even the leading opposition Kenya African National Union (KANU) doesn’t seem to agree with the arrangement. Says party secretary general Julius Sunkuli: “If we have an executive Prime Minister, then the president should have no power at all. The draft has ended up creating two executives. I don’t think that is compatible. The Kenyan people should be left to reconcile whether they want a parliamentary or presidential system of government”.

On the other hand, KANU proposes a Prime Minister with reduced powers than those proposed in the draft constitution. Sunkuli further caused a stir when he proposed that the premier’s post be given to KANU, since it is the single largest party in parliament, as NARC is a conglomeration of several parties. A number of cabinet ministers also fear that an executive Prime Minister may curtail the freedom of decision making that they are currently enjoying.

Another issue bound to split hairs at the conference, and which may only be decided by a referendum is the contentious Kadhis’ courts. The announcement by the National Council of Churches of Kenya (NCCK) Secretary general Mutava Musyimi that the council was opposed to the entrenchment of the courts in the constitution sparked countrywide demonstrations by Muslims.

The feud was fuelled by subsequent statements by other church leaders, culminating in the withdrawal of the Supreme Council of Kenya Muslims (SUPKEM) from the Ufungamano Initiative – a faiths-led initiative on constitutional review.

Although the Kadhis’ courts are catered for in the current constitution, their role is confined to matters pertaining to Muslim personal law of marriage, inheritance and divorce, and only apply when both parties to a dispute are Muslim. While the current constitution delineates them as subordinate to high courts, the Draft Constitution proposes their elevation to appellate level and expands their scope to include commercial disputes involving Muslims.

Opponents of this contentious section see it as an attempt to introduce “Sharia” Law through the back door. They argue that though there is no serious problem with the courts getting recognition, entrenching expanded powers would send wrong signals to other religions and culminate in a situation that led to the 20-year civil war in Sudan.

But the Muslims maintain that they will not tolerate the erasure of Kadhis’ courts from the Draft Constitution. At a time when local Muslim tensions are high over perceived discrimination in the local and international crackdown on terrorism, some conspirational Muslims see the hand of evangelical foreigners and even western governments in what they perceive as an attempt to marginalize their faith.

Owing to the above controversies, it remains to be seen whether Kenya will have a new constitution by the proposed July deadline.

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