New constitution remains elusive

Controversy dogs the National Constitutional conference, which kicked off at Nairobi's Bomas of Kenya in April. A number of delaying tactics have been applied by delegates with vested interests, including demands for hefty allowances, lawsuits challenging the legality of the conference, bribery of delegates to oppose certain chapters in the draft constitution and motions and statements, all aimed at scuttling the process. It is also worth noting that the conference was postponed for two weeks in September to mourn the death in a London hospital of former Vice President Michael Wamalwa. However, the main cause of the delay has been sharp differences within the ruling National Rainbow Coalition NARC over unfulfilled power sharing arrangements. Consequently, the coalition has been attending the conference as a divided house. Notably, the Liberal Democratic Party (LDP) and the National Alliance Party of Kenya (NAK) - the two key partners in the 15 member party coalition - have been embroiled in endless wrangles, with the former favouring the creation of an Executive Prime minister's office as provided for in the draft constituion and the latter rooting for the post of a non-executive Prime Minister. Though the draft constitution, which is being debated at the conference, contains some contentious sections, it is unfortunate that a number of issues became personalized only after NARC ascended to power. Consequently, the age limit of a presidential candidate, which was set at 70 in the draft constitution, has not gone down well with those close to president Kibaki, who would still want him to contest the 2007 elections. On the other hand, Roads and Public works minister Raila Odinga has become synonymous with the Prime Minister. Given his ambitions and the huge support he commands, Kibaki's coterie fear that Odinga may usurp the president's powers, reducing him to a mere ceremonial figure. It is worth noting that prior to the 2002 elections, Kibaki's NAK party presented a memorandum to the Constitution of Kenya Review Commission (CKRC), in which he supported a parliamentary system of government. But in September, he turned a round and ruled out that possibility, saying that there cannot be two centers of power. Transport and Communications minister John Michuki, who is a member of Kibaki's kitchen cabinet, let the cat out of the bag when he said that the idea of an executive prime minister was mooted because they feared that Moi would steer KANU to victory. "Now that Moi is gone, we do not need a prime minister since we have a democratic president", he said early September. It is these divergent views that have spilled over to the conference, with the ruling coalition attending the conference as a divided house. The antagonism reared its ugly head mid September when the Chairman of the technical committee on devolution of powers Dr Odhiambo Mbai, who is a close associate of Odinga was shot dead in his house. Odinga unequivocally stated that he was assassinated by those opposed to the creation of the post of prime Minister, noting that he had received death threats. Although three people suspected of his murder have been arraigned in court pressure has been mounting for the arrest of the chairman of the Parliamentary Select Committee on Constitutional Review Paul Muite, whose name has been mentioned by delegates as the one who threatened Mbai. Muite has since recorded a statement with the police to clear his name. Still, a number of observers doubt the ability of two offices holding executive powers to co-exist harmoniously. Even the leading opposition 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 constitution 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". Another contentious issue, which may only be decided by a referendum is the creation of Kadhis' courts. The announcement in May 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. 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. With the second phase of the conference having adjourned to November 17, the issue of holding a referendum seems to have gained new currency. While the MPs allied to NAK insist on having a referendum, those in LDP are opposed to the idea, stating that the draft document was compiled on the basis of views gathered from the public. Similar sentiments have been expressed by the CKRC Secretary, Patrick Lumumba. Says he: "We consulted the people of Kenya. So the views that we are dealing with are the views that have emanated from the people of Kenya. The Constitution of Kenya Review Act says the final product must as much as possible reflect the views of Kenyans". CKRC chairman Prof. Yash Pal Ghai expresses fears that a referendum could delay the review process for another six months, besides the logistical and financial commitments that it would entail. The Bomas III, expected to last for a month, is set to be a major showdown between NAK and LDP.