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Greed for power mars review process

Key partners in the ruling coalition are engaged in endless wrangles that continue to delay the enactment of a new constitution.
23 December 2004 - Fred Oluoch

Kenya's protracted and controversial constitutional review process seems to have reached a dead-end as two factions within the ruling National Rainbow Coalition (NARC) continue to fight for a document that would favour their chances of winning the 2007 elections.

Yet, the President Mwai Kibaki-led government is under pressure from citizens and multilateral donors to quickly deliver a constitution acceptable to the
majority Kenyans as a fulfilment to the pre-election promise.

The recent passage in parliament of a revised Constitutional Amendment Bill that changed the 65 percent clause needed to amend the draft constitution to a simple majority, has in effect dashed any hopes that President Mwai Kibaki's National Alliance Party of Kenya (NAK) faction that is keen on retaining a powerful presidency and the Liberal Democratic Party (LDP) that is fighting for a parliamentary system, will ever come up with a consensus document
before the next elections.

More so, the boycott of parliament by LDP and official opposition party Kanu, has raised fears that less that 50 percent of the 222 MPs are likely to push
through a constitution on behalf of 30 million Kenyans, who will have no choice but either to accept a constitution tailor-made for political expedience or
reject it and get stuck with the discredited current constitution.

Both the LDP and Kanu have vowed that they will never be party to what they term as the NAK machinations to railroad a constitution in their favour, though the two parties have also been accused by the NAK faction of favouring the current "flawed" draft constitution as a means of furthering their future political

But what is now worrying Kenyans—who have been pushing for a new constitution for the last 12 years—is that the constitutional review process has
now become a hostage of the president Kibaki succession, with each faction striving to use the constitution to either retain power or wrestle power from the current holders.

The National Constitutional Conference—popularly known as Bomas—that ended on March 15, had proposed the introduction of a parliamentary system headed by a prime minister, an event that did not sit well with the NAK faction that are determined to amend the draft to retain the current presidential system and give president Kibaki a shot at a second term.

Yet, the LDP faction that has openly declared that it will break away from NARC and go it alone in the 2007 elections, are depending on the new constitution with
distributed centres of power to enable it forge a
winning alliance and a power-sharing formulae among the many ambitious politicians within its ranks.

The greatest contest of opinion at the moment is on whether parliament should amend Section 47 of the current constitution so as to give it power to replace
the current constitution with a new one. The section as it currently stands, only allows parliament to amend sections of the constitution at any given time
but not to overhaul the entire document.

Early last month, the Attorney-General, Mr Amos Wako, had drafted a bill to change section 47 to enable the adoption of the new consultation, but the Justice and Constitutional Affairs minister, Mr Kiraitu Murungi, blocked it from being published on grounds that it would arrogate parliament the unilateral power of veto in the review process at the expense of 30 million Kenyans.

Signs that the dispute will not come to an end soon, came on December 9 when the Parliamentary Select Committee on the Constitution (PSC), led by Kanu MP William Ruto, to table a draft Bill seeking to amend section 47 without the approval of Murungi.

The NAK side maintained that they were earlier in the year hoodwinked by Kanu and LDP into passing a clause requiring 65 percent of all sitting MPs to change the Bomas Draft, but which they later realised was going to be impossible to enlist the support of 174 members for every clause.

As a result, president Kibaki in mid November, with advise of Murungi, refused to give assent to Constitution of Kenya (Amendment) Bill, 2004 —commonly
known as the Consensus Bill— and referred it back to the house with a memorandum for members to strike off the 65 percent clause.

Soon after, Murungi declared that he will not publish the Bill that had also recommended the amendment of Section 47 of the constitution to allow
the replacement of the current constitution with a new one.

Anti-NAK politicians, such Mbita MP, Otieno Kajwang', are however optimist that the recent move by the government to give parliament power to amend the
draft in accordance with the political whims of the ruling elite, are not likely to succeed since they will face stiff opposition once parliament reopens after three months recess.

But with the NAK side basking under the support of the government of national unity incorporated in June this year—that enlisted the support of some opposition
Ford-people and Kanu members to boost its ability to push government bills in parliament, there are indications that the ruling elite are likely to realise their dream to retain the current presidential system.

Notably, the need to whittle down the excessive powers enjoyed by the president was one of the key driving force behind the agitation for constitutional reform that started in early 1990s under the leadership of former president, Daniel arap Moi.

NAK is however sitting pretty that a rejection of the new constitution in a planned referendum, would still give the chance to the current constitution that favours their political interests, to continue.

The risk, though, is that a rejection of the document prepared by the government, could be tantamount to a rejection of the Kibaki presidency. The current constitution with all the powers revolving around the presidency, gives the incumbent the opportunity to entrench himself and stand above his would-be challengers.

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