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February 2003

Law review suffers setbacks

Zachary Ochieng

Kenyans may not have a new constitution as soon as earlier anticipated. The National Rainbow Coalition (NARC) government, which promised a new constitution in the first 100 days upon ascending to power has reneged on the promise and says there are a number of pending anti-corruption Bills, which need to be enacted so that donors can loosen their purse strings.

According to Justice and Constitutional Affairs minister Kiraitu Murungi, the earliest a new constitution can be enacted is end of July. Murungi says the anti-graft Bills have to be debated and passed first before the MPs can get time off for the National Constitutional Conference, which was interrupted by the dissolution of parliament last October.

But Makueni NARC MP Prof Kivutha Kibwana, also a constitutional lawyer urges the government to conclude the review process as pledged during the campaign period. According to Kibwana, the National Constitutional Conference should have been convened before the official state opening of parliament on February 18.

Kibwana rubbished some of the Anti-corruption Bills published by the government saying they contravened the Draft Constitution. "If a country wants to have a basis for renewal and reconstruction after suffering massive authoritarianism, the first step is a new constitution", he says.

The constitution review process has been mired in controversy since its initiation in 1997. Against the backdrop of several amendments, public pressure for constitutional reforms mounted in July 1997, culminating in the formation of an inter-party outfit, the Inter-Parties Parliamentary Group (IPPG). The IPPG package, which contained minimum constitutional reforms, was passed by parliament but it was felt that what Kenyans needed was a new people-driven constitution.

A parliamentary Select Committee was formed under the chairmanship of Langata MP Raila Odinga to oversee the review process and later appointed the Constitution of Kenya Review Commission (CKRC).

But since religious groups and other civil society organizations also wanted to participate in the exercise, a series of meetings lasting almost six months at Nairobi’s Ufungamano House and Bomas of Kenya culminated in a merger, resulting into a 27-member commission with the Attorney General and the Commission Secretary sitting as ex-officio commissioners.

After more than two years of acrimonious exercises including collecting and collating views, civic education and deliberations on the views gathered, CKRC finally launched the draft document on September 27,2002. But the controversy did not end there. Since then, a few commissioners and their chairman Prof. Yash Pal Ghai have been at loggerheads, sometimes disagreeing openly in public.

Late last month, two Commission vice chairmen Professors Idha Salim and Okoth Ogendo insisted that the draft constitution should be redone as it contained flaws and could not be presented to the National Constitutional Conference in its present form. "The draft was written in a hurry because of elections", said their statement.

But their claims were immediately disputed by other experts, who felt that they were not being honest, having been part of the team that came up with the draft. Even the timing of their announcement was suspect. They convened a press conference when Ghai was out of the country. Makueni MP Prof. Kivutha Kibwana (NARC) – who is also a constitutional lawyer – said: "I don’t read goodwill in their demands. They are people who want to keep their jobs".

The International Federation of women lawyers, Kenya (FIDA) Executive Director Ms Jane Kiragu said: "To tell Kenyans that the draft was done in a hurry and is therefore not representative of their views is dishonest and opportunistic". The commissioners have always been accused of delaying the review process so that they can continue earning hefty allowances.

Late last month, Murungi declared that the mandate of the Commission had expired on January 3 and that the commissioners would not be paid their allowances from that date. But this has only complicated matters, raising issues of legality.

As Ghai and Murungi contend that the commissioners do not have a mandate now, the commissioners on the other hand argue that the commission legally exists as provided in Section 33 of the Constitution of Kenya Review Commission Act, which created it. Besides, the commissioners argue that they still have US$ 2 million to spend and would not therefore require additional funding.

Upon the dissolution of the eighth parliament by former president Daniel arap Moi late last year, Attorney General Amos Wako cited the same section and said it provided that "the commission will stand dissolved only when a new constitution has been enacted". However, Murungi maintains that the commissioners will have to await a renewal of their mandate by a reconstituted parliamentary Select Committee after the ninth parliament is officially opened on February 18.

Issues of legality aside, sources close to the commission say that the commissioners are claiming that the government is dragging its feet, after promising a new constitution in the first 100days of office. A commissioner who requested anonymity lamented: "There could be a change of mood in the government. We don’t get the kind of support we expected". Other sources claim that a section of the government is not comfortable with the position of Executive Prime Minister and devolution of powers as proposed in the Draft constitution.

But Commission Secretary Patrick Lumumba absolves the government from blame. "When we promised a new constitution by June, it was assumed that people would be pushing in the same direction. I want to give the government the benefit of the doubt. I don’t want to say it does not want a new constitution now", he said at a press conference.

However, it is not only the commissioners who are criticizing the government for delaying the enactment of the new constitution. Early this month, a group of 16 opposition KANU MPs accused NARC of fomenting political mischief to entrench itself in power.

In a press statement read at parliament Buildings by the party’s Director of Elections William Ruto, the MPs said: "We earnestly believe that the NARC government is fomenting political mischief in order to entrench itself in power while denying Kenyans their right to good governance and a more accountable and democratic government".

What, however, plagues the commission most is the wrangling between the commissioners and their chairman, and even amongst themselves. The commissioners feel that it is Ghai who campaigned for the stoppage of their allowances. Ghai also maintains that the commission should now be trimmed to only seven commissioners and two commission secretaries as the remaining workload is now light. "The need to continue with the commission’s work is shared by all the commissioners except the chairman", complained commissioner Githu Muigai.

Analysts also trace personal differences among the commissioners dating back to their days as Law students or lecturers at the University of Nairobi. The latest disagreement, however, arose from claims that an NGO whose mandate is not known has hijacked the review process with the chairman’s blessings, an accusation that Ghai denies.

The Institute of Economic Affairs has been organizing seminars for a group of civil society organizations since last October to discuss the contents of the Draft Constitution. The organizations have been meeting at Palacina Hotel, which has earned them a name – "The Palacina Group". It is instructive that Ghai has attended some of the seminars.

Matters were made worse by the revelation early this month that hours before KANU MPs went into a retreat at Mount Kenya Safari Club to discuss constitutional reforms among other things, Ghai held a four-hour meeting with two top KANU officials without informing other commissioners.

Differences within the Commission also came to the fore when the Commission retreated to Mombasa last August to prepare the draft. One Commissioner, Mr Keriako Tobiko, never travelled with the group. Other commissioners perceived to be unco-operative – Dr Mosonik arap Korir, Ms Abida Ali and Ms Alice Yano attended the proceedings but did not contribute to the deliberations.

Consequently, the four commissioners - known to be sympathetic to the then ruling party KANU - were not present at the launch of the document and therefore did not sign it. Earlier that month, the then president Moi turned down an invitation by the Commission to go and present his views, arguing that he was being called at the "eleventh hour after the constitution had been written". He later described the Draft Constitution as "alien".

On August 30, 2002, the review process was thrown into disarray following a High Court order stopping the Commission from carrying on with its work. Two lawyers Tom Kopere and John Njongoro went to court arguing that some of the proposals contained in the Draft constitution would push them out of their jobs. The order was later quashed by an Appeal court.

Upon its launch, the draft constitution was greeted by lawsuits filed by Appellate judge Justice Moijo ole Keiuwa and High Court judge Vitalis Juma. They sought to bar the discussion of the parts touching on the judiciary at the National Constitutional Conference. Among the radical changes proposed in the draft constitution include lowering the retirement age of judges from the current 74 to 65 years. The judges are also supposed to vacate their offices and apply afresh for their jobs.

It is these proposals that prompted the jittery judges to seek legal redress.

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