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.