Fear looms over new constitution

Hopes of achieving a new constitution under the current administration are
waning by the day following the unexpected postponement of the National
Constitutional Conference by the Parliamentary Select Committee on
Constitutional Review [PSCCR]. Sources privy to the conference predict more
chaos when the conference reconvenes on January 12, if previous disruptions
are anything to go by.

"When Bomas reconvenes, there will be a rush because time will be very
short. That will create more chaos and disagreements", says KANU MP Nick
Salat. Salat's fears are founded on the premise that after the Draft Bill
goes to the plenary, it will then be taken to parliament, which is already
split between those asking for a referendum and those opposed to it.

It is worth noting that when the delegates left Bomas of Kenya - the venue
of the conference - in September, the official word was that they would
reconvene on 17 November and Kenyans given a new constitution this year as a
"Christmas gift".

While giving his assurances, the Constitution of Kenya Review Commission
[CKRC] chairman Prof Yash Pal Ghai said the promise would be kept "only if
the delegates put their heads together and politicians stopped scheming
behind the scenes to scuttle the review process".

But no sooner had the delegates left Bomas than the politicians began
scheming. The January 12 date was set at a meeting between the CKRC, the
Parliamentary Select Committee and the House Business Committee. The meeting
argued that parliament had a tight programme and MPs, who make a third of
the 629 delegates, would not be able to attend the talks.

With Bomas III expected to run till March 31, fears now abound that the push
for a new constitution is slowly but steadily dying out. "If the conference
doesn't end between January and March next year, it will be caught up in
parliamentary calendar again", argues NARC MP Dr Adhu Awiti.

"There will be normal parliamentary business that will run up to June 2004,
when the budget is read. After that, all debates will be focused on it. That
will mean Bomas cannot reconvene until much later in 2004. I therefore don't
see a new constitution next year", adds Awiti.

At the CKRC, those optimistic see the year 2005 as the earliest date Kenyans
could get a new constitution. However, other constitution review
commissioners have lost hope and argued that NARC may not deliver a new
constitution after all.

Others argue that the current reforms taking place in the judiciary is an
undisclosed desire to scuttle the quest for a new constitution. On the
surface, the rush to rid the judiciary of corrupt judges was done in good
faith. But some leaders fear that the purge is in line with what they see as
piecemeal and selective implementation of the Draft Constitution, rendering
the review process irrelevant.

It is noteworthy that the government has also implemented a number of
recommendations in the Draft Constitution in the public sector. But the
feeling that NARC no longer wants the review runs deep within the CKRC and
within the ruling coalition itself.

"There are even those who are now questioning whether CKRC and the National
Constitutional Conference are still relevant in the face of ongoing reforms.
The latest thinking is that the reforms are already here, so the country
does not need CKRC any more", says a commissioner on condition of anonymity.

However, the chairman of the Parliamentary Select Committee on
Constitutional Review Paul Muite says it is wrong to expect the government
to shelve reforms until a new constitution is ready. "Constitution writing
is based on consensus. You cannot prescribe a time limit within which people
must agree. We can't expect the government to let corruption go on until
there is consensus over the new constitution", argues Muite.

Muite's sentiments are echoed by Lands Assistant minister Orwa Ojode, who
also says reforms can't wait, just like the push for a new constitution
cannot be rushed. "Kenyans will get a new constitution, however long it
takes", says Ojode.

But whether the new document will come at all is becoming a key question.
When the House Business Committee met mid last month to discuss whether the
National Constitutional Conference should reconvene, a sizeable number of
its members, including two cabinet ministers argued that the conference
should be dissolved altogether.

A delegate at the conference argues that parliament and the government are
doing what the National Constitutional Conference is paid to do. With
piecemeal implementation of reforms, the government is setting the stage for
a situation where the Draft Constitution will have to be amended to conform
to what is being put in place now, thus causing more delays.

As debate rages on the review process, a Nairobi lawyer Kiriro wa Ngugi and
a delegate Koitamet ole Kina have gone to court challenging parliament's
decision to postpone the conference. It would be interesting to hear the
outcome of this case.