Controversy mars constitution review process

As Kenyans await a new constitution, the commission entrusted with the onerous task of preparing this vital document has slipped into inexorable controversy, casting doubts on whether the commission shall be able to complete its task before Kenyans are expected to go to the polls in December 2002.

Prof. Yash Pal Ghai, chairman of the Constitution of Kenya Review Commission (CKRC), is optimistic that a new constitution will be in place by September. However, politicians and even some of Ghai's own commissioners are sceptical whether this will be possible, given the limited time left. "We shall review our activities in April, and should we feel that more time is required, we shall ask Parliament to extend our tenure," says Zein Abubakar, one of the commissioners.

The constitutional review process has been mired in controversy since 1997 when Kenya held its second multiparty elections. Public pressure for constitutional reforms mounted in July 1997, culminating in the formation of a inter-party outfit, the Inter-parties Parliamentary Group (IPPG) to oversee the reform.

The Constitution of Kenya Review Commission Act of 1997 - which was amended in 2000 and 2001 - is one of the three statutes that made up the IPPG package. The others are the Constitution of Kenya Amendment Act 1997, and the Statute Law (Miscellaneous) Amendment Act 1997. The IPPG package was passed by Parliament, paving the way for elections before actual constitutional reforms could begin.

But it was felt that the constitution needed a through overhaul. A select committee was formed by the eighth Parliament, but other stakeholders who felt that the review process should be people-driven decided to hold a parallel review. Various stakeholders met to discus this issue. By early 1999, the political parties represented in Parliament could not agree on how to share seats on the commission.

In November 1999, a group of religious leaders met at Ufungamano House in Nairobi and invited 54 groups from civil society that were listed as stakeholders in the review process. This culminated in the formation of the People's Commission of Kenya (PCK), comprising of representatives from other political parties, and religious and civil society organizations. The Ufungamano initiative appointed 15 commissioners, some of whom were merged with Ghai's Parliamentary team in June 2001. The final product was a 27-member commission with the attorney general and secretary sitting as ex-officio commissioners.

But no sooner had the commission settled down to business than controversies began to plague it. Commissioners invited the ire of the president and Parliament when they asked for hefty allowances amounting close to US$12,987 a month. This was soon followed by another outcry when it was discovered that commissioners had spend huge sums of money purchasing four wheel drive vehicles for themselves.

But what threatened to tear the commission apart was the discovery that some commissioners who were seen to be loyal to the ruling party, Kenya Africa National Union (KANU), made a secret visit to State House last year without the knowledge of others, not the least the chairman. Since State House has earned the notoriety of compromising various leaders, this secret visit was seen by many observers as a ploy by KANU to have the review done in its favour.

Since this visit, the commission has never been the same again, with commissioners going at each other's throats even in public. Major fears also abound that the review process might come to a halt if the Constitution of Kenya Review Commission is not entrenched in the constitution, as any litigant can move to the constitutional court and challenge the commission's legality.

However, the controversy that is currently brewing and that is likely to derail the review process is about the provision of civic education. As a prerequisite for gathering views from the public, the commission appointed 2,800 Civic Education Providers from across the country. The hullabaloo is mainly on payments to those civic education providers.

Last month, the induction courses conducted for these providers were marked by acrimonious scenes, with the commission insisting that it has no money. According to Commissioners Abubakar and Phoebe Asiyo, Parliament allocated US$14.2 million to the commission this financial year, of which only US$3.8 million has been spent.

During an interview, the two commissioners remained non-committal on what portion of that amount had been allocated for civic education. "The providers will have access to limited funds from the commission," said Asiyo. "For now, let them just continue with civic education." Whereas the commission asserts that some organisations are asking for funds yet other donors already fund them, the argument might not hold water since theirs is an expanded curriculum that would definitely entail more resources.

The curriculum of those organisations already conducting civic education - for instance, the National Civic Education Programme (NCEP) - mainly covers topics of nationhood and nation building, constitutionalism and constitution making, democracy and democratisation, and governance. But the CKRC curriculum - while encompassing various issues dealing with democracy, the constitution, and governance - also addresses issues of gender, disabilities, marginalized communities, poverty reduction, and minority and children's rights.

The commission's transparency was put to the test in Homa Bay late last month when a lunch allowance of US$4 was given to each civic education provider. A baffled Carolly Okeyo, a civic education provider from the western Kenya district of Migori asked the commissioners present why there were no such provision in Migori. Abubakar promised to find out from the secretariat what might have caused the anomaly.

Civic education is considered an important component of the constitutional review process. But considering the large number of organisations that the commission has chosen to work with, the exercise might be futile, after all. Apparently there was no proper vetting of these providers, most of which are phantom and briefcase organisations whose representatives haven't the haziest knowledge of civic education.

Commission Secretary Patrick Lumumba says: "We shall weed out organisations unable to perform within the first week of the commencement of activities." But that may be easier said than done, considering that civic education providers are to be supervised by the constituency constitutional committees, themselves shrouded in controversy.

Although the committees were to be appointed by the district coordinators in consultation with area Members of Parliament, the latter carried the day in most areas, appointing their cronies and hangers-on to the committees. Again, some of these appointees do not have a thorough grasp of civic education as to be able to supervise the exercise. There seems to be confusion in the pecking order at the commission, with some commissioners issuing statements that contradict their chairman's.

While Ghai maintains that the commission would be through with its work by September, some commissioners aver that they will have to be given more time to complete their work. But there is no gainsaying that the commission is operating behind schedule. So far, no constituency constitutional committees have been formed in Siaya District. Consequently, the three constituencies that form the district, namely Alego/Usonga, Ugenya, and Gem, have momentarily been locked out of the review process.

The commission is also supposed to have set up documentation centres in all 74 districts in the country but so far none have been put in place. The foregoing developments, therefore, call for the commission to put its house in order if it is presents to Kenyans a constitution that is truly people-driven. On a positive note, however, the commission has made history by going public with their accounting books. Early this month, the commission, in an unprecedented move, gave a breakdown of how it spent funds allocated to it so far.