Daggers drawn as Bomas III kicks off

Earlier in the month, a party consultative meeting held at Nairobi's Safari
Park Hotel hit an impasse after parties failed to agree on a major
contentious issue - whether the country should adopt a presidential or
parliamentary democracy.

The differences centred mostly on whether the president should sack the
prime minister without reference to parliament. While NAK wants the
president to have such powers, FORD-People, KANU and LDP want those powers
to be vested in parliament.

Whereas LDP wants the prime minister to be given powers to co-ordinate
government activities as spelt out in the Draft Constitution, NAK wants such
powers to be exercised by the prime minister and the Deputy prime minister,
but set out by the president.

The parties' failure to agree on this contentious issue only hardens the
work of delegates, who will have to lobby intensely in order to carry the
day. In the event of a deadlock, a referendum - which has already generated
a lot of controversy - will have to be held.

LDP and NAK - both key partners in the 15-party conglomerate that form
NARC - have been at loggerheads following President Mwai Kibaki's failure to
implement a pre-election Memorandum of Understanding (MOU), which was to
create the post of a premier for LDP's Raila Odinga.

Even as the delegates prepared to go to Bomas, signs of mistrust and lack of
confidence in the ruling coalition's rank and file was still evident. So
much has been the suspicion that ministers allied to NAK, notably Kiraitu
Murungi, Chris Murungaru and Charity Ngilu have been calling for the
dissolution of Bomas so that the rest of the process cab be completed by
legal experts.

Their argument has been that the delegates cannot be left to complete the
exercise, given the low quality debates that Bomas has churned out in the
previous sessions. Other MPs opposed to Bomas argue that the delegates are
partisan, considering that they were appointed during the KANU regime, hence
their likelihood to owe their loyalty to the former governing party.

But a Constitution of Kenya Review Commissioner Mr Abdirizak Nuno took issue
with the MPs opposed to Bomas, arguing that such leaders had not attended
the previous sessions or technical committee meetings.

"Calling on experts to handle the constitution is a clear way of scuttling
the whole process by people who have not attended Bomas I and II sessions",
he asserted. He was supported by another commissioner, Prof Okoth Ogendo,
who said that MPs who are criticizing Bomas had the worst absenteeism
record.

As the delegates headed to Bomas, it was clearly evident that a few chapters
in the Draft Constitution would generate heated debates. Among these is
Chapter 8, which talks about the Executive and the creation of the prime
minister's post. Ironically, the president and his coterie had supported
the premier's position when they were in the opposition but are now arguing
that the creation of such a position will lead to two centers of power.

Chapter 10 is also contentious and is bound to be a subject of acrimonious
debate. It provides for the devolution of power to give self -governance to
the people at all levels and the creation of provincial, urban, district and
locational governments.

Proponents of this provision argue that economic development in the country
has been lopsided, as the central government has tended to favour certain
regions, while neglecting others. Leaders from Coast province particularly
lead in the clamour for devolution, arguing that the region has been
neglected by the central government since independence.

But hose opposed to this provision argue that it is an expensive exercise
that will create limitless bureaucracies.

The judicial system, provided for in Chapter 9 of the Draft Constitution has
also become controversial. The bone of contention has been the enshrinement
of the Kadhi's courts in the constitution as suggested by Muslims, but which
has been vehemently opposed by Christians.

The opponents of this provision argue that it amounts to declaring Islam a
favoured state religion, though Muslims maintain that the Kadhi's courts
have been in existence over the years.

It is this same chapter that provides for the creation of a Supreme Court as
the highest court in the land. But those who are opposed to the idea argue
that the creation of such an institution cannot be justified given that the
Court of Appeal can serve the functions for which it is to be assigned.

Another contentious chapter is Chapter 7, which provides for the creation of
a two-chamber legislature, similar to the one adopted at independence. But
opponents of this provision say it is expensive and would complicate matters
of representation, while running the risk of duplicating responsibilities.
However, the most contentious provision in this chapter is the proposal to
have constituents recall their non-performing MPs. This will no doubt
generate a lot of controversy.

Always a thorny issue in the country, land as provided for in Chapter 11
will no doubt generate endless debates. As it is, some argue that land
should be redistributed, since it was to be done so at independence but this
never happened.

Some delegates, especially those from the coast want squatters resettled.
Similarly, victims of the 1992 and 1997 ethnic clashes want laws to be
enacted for the protection of legally acquired land.

Human wildlife conflict, which has raged for sometime now is also likely to
dominate the session. Those whose properties have been destroyed by wildlife
want compensation, a matter which does not sit comfortably with the
environment minister.

However, it is worth noting that most of the delegates have already agreed
on the need to protect the country's forests, which have been previously
decimated to provide timber and land for certain people in high places.

Given the differences that have dogged the review process since its
inception, it remains to be seen whether the review will come to a fruitful
conclusion.