KENYA:The Proposed New Constitution of Kenya

Published on by KANYARWANDA

The Proposed Constitution of Kenya has been officially published and will have to be subjected to a referendum. The proposed constitution results from the Harmonized draft constitution that was written by the Committee of Experts last year. The Kenyan Attorney General officially published the proposed constitution on April 7, 2010.

Kenyan netizens are currently discussing the document. Let's start with Ssemakula Mukiibi who notes that the proposed constitution ignores atheists, polytheists and heathens. The preamble, he argues, sets a faulty precedence by assuming that all Kenyans believe in a personal God:

kibaki-karo1.jpgWhile the proposed constitution's preamble (text below) is not one of the contentious issues, it is my opinion that it sets a faulty precedence. The glaring fact is that this preamble is not inclusive of all Kenyans. It makes an assumption, based on the major religions in the country, that all Kenyans believe in a personal God and acknowledge the supremacy of that God.

The preamble:

We, the people of Kenya

ACKNOWLEDGING the supremacy of the Almighty God of all creation––

The preamble ignores people who believe in multiple gods, people who believe in an impersonal God and persons who do not believe in any god(s). The essential values of human rights, equality, freedom, democracy and social justice demand that the beliefs of all Kenyans, not only those of the majority, must be respected and no belief should be raised above any other. By raising a specific belief, albeit a majority one, above others it immediately enshrines this belief as a state belief and, by extent, declares divergent beliefs illegitimate.

The constitution should not only respect the right to religious belief, but it should also respect the right to not believe. By supporting only the right to believe, and only the right to believe in an Almighty God, this preamble disenfranchises a minority of Kenyans who do not prescribe to this particular belief system. The constitution, by definition, applies to all Kenyans, not just the majority. To this end, it is downright hypocritical to argue about the entrenchment of Khadi courts based on the fact that they are religious institutions and yet ignore this glaring entrenchment of a religious belief.

Macharia Gaitho, blogging at the Daily Nation of Kenya views the constitution debate as being about political power. He writes, “…the debate is no longer about the merits and demerits of the new constitution, but about naked political power play.”:

Kenyan churches have organised themselves asking their followers to reject the proposed constitution mainly because of provisions on abortion and Kadhi's courts, which adjudicates on Islamic law. Macharia again,

Groups holding differing views are drawing lines in the sand instead of engaging in honest discourse on how the contentious issues can be solved to the satisfaction of all. Even sadder is that Christian leaders have opted to immerse themselves deep into a mire.

Make no mistake, the church leaders have some very good justification in their opposition to retention of Islamic courts in the new constitution; and to the window provided for abortion in event of medical emergency.

But then our Islamic faithful would provide very strong counter-arguments in favour of the kadhi courts. On the abortion clause, the medical profession and other groups would not advocate a woman facing childbirth complications being abandoned to die.

The problem is that, continues Macharia Gaitho, there is no logic in matter of faith:

The trouble is that on matters of faith, like politics, there is often no logic, rhyme or reason. It is about taking a position and then dogmatically refusing to countenance any other point of view.

Once you proclaim that your standpoint comes with divine authority, it is almost impossible to compromise because you will be conceding that your God was wrong or had a change of mind.

It is impossible to reason with Islamic extremists who believe in the reward of 72 virgins if they blew themselves up along with whatever number of innocent people in pursuit of a demented agenda inspired by some mad mullah from Iran or Afghanistan.

It is equally impossible to reason with Christian extremists who believe, egged on by funds from equally mad American far right fundamentalists, that they have divine mission to save the world from evil non-believers.

Throw in our sick brand of politics into the mix, and you have an incendiary situation. Those lining up behind Agriculture minister William Ruto in the No campaign are not doing so for any honourable reason.

They are pursuing the vendetta in the ODM which dictates they take battle to Prime Minister Raila Odinga. That is why they are predominantly from one community that feels betrayed by Mr Odinga after helping catapult him to a share of power.

IT IS ALSO A GROUPING WHOSE LEADERS are trying to find a footing after enjoying a quarter century of unrestrained power — with the accompanying looting, pillage and plunder — under retired President Daniel arap Moi; and suddenly dealing with the shock of realisation that they are no longer above the law.

Of course those supporting Mr Odinga’s Yes campaign are not driven by pure altruism either. Many will turn right or left and march back if he asks them to.

Within the grouping in PNU supporting the new constitution, the most prominent is President Kibaki, whose overriding desire might be to rescue something of his legacy before calling it a day.

In another post Macharia writes, “May it never be said that the Church denied us the law,”

Church leaders have earned notoriety for letting Kenyans down in the recent past. The 2005 referendum and the 2007 elections illustrate starkly occasions when the church, or the churches if you will, abandoned its sacred role to immerse itself neck-deep in the corrupt arena of Kenyan politics.

Listening and watching church leaders at those tumultuous times was no different from observing the Kenyan political animal.

We witnessed them campaign for viewpoints that had nothing to do with what is good, just and holy. They unashamedly exploited their bully pulpits to take positions based on partisan and ethnic loyalties.

Kenyan churches, he argues, are using two provisions to drive a campaign of hate against the new constitution:

Kenyan churches have seized on just two issues they are uncomfortable with to drive a campaign of hate and vitriol against the new constitution.

They have picked on a provision that is not at all new and has been part of the Kenyan constitutional order, the Kadhis’ Court, to incite their flock against the new document.

They have also invented grouse against what they claim is legalisation of abortion in the mere proviso that termination of pregnancy can be allowed where the procedure is necessary to save the life of the mother.

The clergy may well have genuine problems with those two issues. But their campaign, complete with expensive media advertising, reeks of excuses, rather than real reasons, to wage war against the new constitution.

For starters, it completely ignores the fact that if Kenya voters reject the new constitution, they will simply be stuck with the present constitution, which still has provisions for the Kadhi courts; and does not as explicitly bar abortion for reasons other than medical emergency.

SO WHAT WILL BE THE GAIN? ABSOLUTELY nothing, except insofar as it may provide the clergy with an opportunity to flex muscle and demonstrate the kind of clout and influence they carry.

Constitution-making is a process of give and take. It would be extremely selfish and destabilising if every sect, faith, creed, clan, race or ethnic group came out against the constitution simply because their specific peculiarity was not addressed.

I don’t like the Kadhi courts either. I tend to recoil against anything that suggests clerical interference in private lives or anything — Hindu, Christian, Muslim or Mungiki — that hints at religious intolerance, extremism or self-righteousness.

But I am willing to live with them because they do not affect me in the slightest; and because I understand the history of their inclusion in the Kenya constitution since independence.

I am not an advocate of casual abortions either. But I would have to be extremely callous and cruel not to recognise that termination of pregnancy may sometimes be necessary for medical reasons or to save a young rape victim from lifelong trauma.

Daniel, blogging at Mars Group Kenya, also attacks the position taken by Kenyan churches:

For us married priests, it is a crime against humanity for a man not to get married and it is a crime against humanity for Christians to vote for a constitution that support direct abortion. The Catholic bishops and all Christians should not be betwixt??? and between on this matter.

Telling Christians to choose between Yes or No is being noncommittal. Give them the stand of the church on the constitution and then let them use their conscience that is fully informed by the teachings of the church on the matter. President Kenyatta told the Catholic Bishops of Eastern Africa in July 1976: “The church is the conscience of society, and today a society needs a conscience.

Do not be afraid to speak. If we go wrong and you keep quiet, one day you may have to answer for our mistakes”. Even if the Catholics are finding it hard to explain why they are still Catholics under the current wave of sex scandals, the church is still the conscience of the society.

For us married Priests Now! Catholic Prelature, we are against abortion. As we talk, the Kadhi's courts are in the current constitution. We propose that as we have in the Army different chaplains, we have Married Priests' Courts under the same terms as Kadhi's courts in the new constitution and other denominations follow suit. That will make all of us happy.


Mjenga Kenya discusses major provisions
in the document. He starts by saying that the document is “idiot-proof”:

Basically, this document is idiot-proof. Anybody can read this katiba and understand what each article says without needing an expensive lawyer or re-reading it severally.
Parliament:
Set parliament periods. Elections will be held on the 2nd Tuesday of August every 5 years.
Parliamentary Service Commission's composition continues to nag at me. i think its too MP-heavy and renders itself to their undue influence.
The MP recall clause- is in, but its not i.e. parliament has been given permission to come up with a law setting out the requisite criteria and procedure. However, article 105 does allow one to take a petition to high court against your MP basically declaring his seat vacant. And petition will be heard within 6 months.
Executive:
President has to seek parliamentary approval when appointing his/er Cabinet (now known as Cabinet Secrtaries), AG, Secretary to Cabinet, Principal secretaries, ambassadors , Cheif Justice and his/er deputy and ANOTHER.
Has to wait for 7 days after the elections before s/he is actually sworn into office (no more midnight swearing shenanigans)
Cabinet ceiling set at 24. Not sure why there is a floor of 14.
Cabinet secretary can't be an MP.
Cabinet secretary can be dismissed by parliament via majority vote (Kimunya won't have to die and resurrect)
Kadhi courts deal with muslim matters. Imho, they shouldn't be part of the civil service, but having been around for 53 years, it'd sheer hypocrisy to say I'm voting NO because of them. I can wait until the katiba goes through and then wage war proper.
Economy:
Devolved government has made it into the katiba complete with revenue (set at a floor of 15% of GoK revenue) and own senate.
Better control of public finance via a pre-budget statement that will allow parliament committee to consult the public.
An independent CBK-very very important especially for banking supervision and monetary policy.
Other of note:
National police
Amendments can be done via parliament and popular initiative.

Linus Githai identifies major issues emerging from the constitutional debate:

We have had a most interesting debate on how we want to be governed going forward. From what Kenyans are saying, a couple of imperatives are emerging:

1) Kenyans do not want an imperial head. They do not want winner-takes-all electoral outcomes. Come to think of it, in past presidential elections, we had no clue who the Vice-President would be or even what kind of government the winner was going to form.

2) Kenyans do not seem to want two centres of power. This is interesting because at the same time, they do not want to give anyone ‘imperial powers’. We must examine this and maybe try to reconcile the two positions.

3) Kenyans want to directly elect their CEO, whether that CEO is a prime minister or a president. They want a pretty direct way of deciding who it is to be the boss.

4. Kenyans want devolution but inexpensively. After experimenting with CDF, Kenyans do want a lot more devolution and want a lot more say at the grassroots on what the local priorities are and want to have the funds to implement them.

5. Kenyans want to rekindle their faith in the justice system. One of the big issues of the last general election is the fact that the protagonists were not willing to go to court as there were fears that justice would not be done.


Kumekucha reports
that main politicians in Kenya have been caught with their pants down with people-driven constitutional changes. He elaborates:

Vice president Kalonzo Musyoka has been dubbed the Yes-No-No-Yes man. Uhuru Kenyatta’s stance on the draft constitution is No, Yes, No, Yes. Very funny but also very true. The indecision in both is very selfish.

Mr Musyoka hates the fact that a victory for yes would result in PM Raila Odinga upstaging him politically. And so he had to attract attention to himself with his Yes but… stance. The motives are even more selfish for Uhuru Kenyatta. His electorate is itching to crucify anybody who dares oppose a new constitution but on the other hand is his vast family wealth mainly based on massive tracts of land grabbed by his late father Jomo Kenyatta. If the draft constitution were to be enacted, it will almost certainly mean that the family fortune will be wiped out literally overnight.

Kalonzo Musyoka is also shrewd enough to realize that the new political order brought about by a new constitution will mean that the highest political office he will ever hold will be that of Vice President. His dreams of being mtukufu rais will fade into the sunset with the old constitution. Fascinatingly and eeringly too, the old constitution seemed to have greatly favoured cowards for the presidency (read my book Dark secrets of the Kenyan presidency and you will be amazed) and that is why Jomo Kenyatta became president rather than General Dedan Kimathi and Daniel Moi rather than J.M. Kariuki or Tom Mboya. And Kibaki rather than Ken Matiba or Charles Rubia. And therefore chances were that Kalonzo Musyoka or Uhuru Kenyatta would have ended up as president rather than Raila Odinga or William Ruto. I have used those names just as examples and nobody should interpret it as my preference for any of those individuals to be president.

My point is that now with a new constitution, Kenya will have a truly new dawn where I see the new political faces being totally unrecognizable for those used to the old order of things.

The Standard Newspaper blog has views from the Diaspora on the proposed constitution written by Chris Wamalwa in Delaware, USA:

I've been to several cities in the US in the recent past and I can report that the Kenyan Diaspora is equally consumed by the impending referendum on the Proposed Draft Constitution.

From New England in the North East to the Potomac River states and the District of Columbia to Atlanta Georgia where Dr Martin Luther King, the father of civil rights movement lies, the conversation at the dinner tables is nothing but the referendum.

In Houston, Texas, I met one Kenyan who is so passionate that he is using personal resources to create as many forums as possible to debate the referendum.

Please, meet Mr. Moses Marango, a Kenyan resident of Houston who is accusing the religious leaders who are opposed to the draft as lacking the moral authority.

He gives the following reasons:

Prior to the 1997 general elections in which the now retired President Daniel arap Moi was seeking his final re-election, majority Kenyans including NCCK, the Kenya Episcopal Conference, NCEC, citizens and other clergy men called for a Constitutional Review as a sufficient condition for a fair and just election. And of course, our main concern was the rampant abuse of civil liberties and public resources including land without accountability by an all too despotic executive.

Prior to the controversial 2007 elections, some well known Bishops and Arch-Bishops used the pulpit to declare God’s anointing of their own tribesmen, Kibaki or Raila, as Kenya’s next president. The Kenyan church, like the Rwandese church in the infamous 1994 genocide, took tribal stands. They kept quiet when Kenya went down in flames during the PEV. Selective grace is not godly and God cannot allow two conflicting prophecies for the same position.

Kenya did not go through the PEV because of the Kadhi’s courts and abortion but partly as a result of the imperial presidency hence the serious desire for the new constitution before the next election.

In Marango's judgment, the new constitution is both good and bad.

Why is it a good?

One, it trims the President’s powers and influence through reasonable checks and balances that include defining the size of the cabinet, a measure that will tremendously help lower the cost of running the government.

Also, the cabinet appointees will be vetted in Parliament before assuming office. Hopefully, meritocracy will be the main consideration and not loyalty and ethnicity.

Further, the incumbent president shall lose the political manipulative power and undue advantage of dissolving parliament and declaring the election dates at his or her own will.

Through the two-tier government system, the process of devolving national resources shall enhance service delivery to citizens and promote economic growth.

The fact that members of the cabinet shall not be legislators, will make the MPs to focus on their primary responsibility, legislation. This shall hopefully improve the quality of parliamentary debates and more members’ involved in law making.

“The problem is that Kenya needed to have developed a better constitution quite earlier,” Kenya Byte warns Kenyans of hate messages as was the case in the 2005 Referendum and 2007 elections:

The 2005 Referendum and 2007 election introduced Kenyans to a vile form of mass misinformation - the insidious power of hate messages.

It was the propagation of these hate-filled messages that inflamed Kenyans against each other in both instances.

To be able to prevent a repeat, we must understand why mobile telephony and the internet have become such powerful tools of incitement.

Group Action in Hate Messages
The telephone and television (old media) are one-way communication technologies that do not allow groups to be created and organised rapidly. This is because creating a group and mobilising it around a cause by using a television is not sustainable.

This is because a group has connections which have to be constantly maintained and the old media was not designed to nurture these interpersonal connections.

Mobile phones and the internet (new media) depart from the old media in that they enable near real-time two-way communication. Creating a group using your mobile phone has never been easier. Of more fundamental importance is the ease at which you can maintain connections to a group.

Having a group conversation with 500 like minded people is as easy as clicking a “Send” button in your mobile or selecting multiple e-mail addresses. The ability to ignite collective action by using new media will only increase in the future and this is the reason why hate messages were so effective in 2005 and 2007.

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