Saturday, August 23, 2008



By Jerry Okungu
August 23, 2008

It is time we took the circus out of the Kenya Constitution review. It is time we got real. We can no longer allow ourselves to be fooled by opportunistic self seekers masquerading as stakeholders always on the lookout waiting for an opportunity to waylay the process and hijack it for their personal benefits.

Now is the time to call a spade a spade if we have to conclude this rather tired process. I have watched this merry-go round with our constitutional review for too long to the extent that when I see “professional” workshop attendants opening their mouths about the constitution, I feel like throwing up.

Let us remember painfully Daniel arap Moi’s first suggestion soon after he won the 1992 elections. On reflection, the old man had a point. He mooted the idea of bringing constitution experts from the British Commonwealth, USA, United Nations and the OAU to look at the Kenyan constitution with a view to reviewing and revising it to be up to date with the then new multiparty dispensation. That idea was never pursued.

After 1997, Raila Odinga joined forces with Moi to fast-track the process through a commission and Parliament. The whole process would have moved faster had it not been for the so called stake holders who conspired at Ufungamano House to heckle the process.

Initially these hecklers pretended to conduct their own people- driven review process under the auspices of a few opposition MPs, religious groups and the civil society organizations. Among them were self-styled constitutional lawyers, churchmen, activists and human rights champions. It was a mixed grill that reminded one of the Tower of Babel. Each significant player; whether it was the NCEC, NCCK, Kituo Cha Sheria or any other activist organization was competing to outdo one another on the constitution platform.

When Professor Yas Pal Ghai was finally recruited by the government to take charge of the review, the Ufungamao group jumped ship on realizing there was money to be made in the government led commission. For purposes of accommodating their views, they swelled the original fifteen commissioners by another eleven members, making the review team one of the most bloated and wasteful setup in Kenya’s recent history.

The sheer lobbying by these so called stakeholders to be appointed to the commission was mindboggling. Some of the most respected personalities threw caution to the wind and did all it took to get on board. Once there, they never wanted to conclude the process. What started as a one year contract with Kenyans lasted five good years. Had we not held a referendum in 2005, we would still be paying these commissioners their perks today.

The review process must this time keep away a certain category of “professional” stake holders. They include self-styled constitutional lawyers, human rights groups, religious leaders and anybody else who has demonstrated on the streets for one reason or another in the last five years. The reason these types must be excluded from the process is because Kenyans are tired of noise. Secondly, Kenyans want to move on with their lives.

As Raila Odinga and Martha Karua have rightly said, there is very little left of the parameters of the new constitution. The Bomas and Kilifi drafts had harmonized at least 80% of the constitution. Thanks to the last violence that followed the 2007 elections, devolving presidential powers has substantively taken place. Now we have a Prime Minister who shares executive powers with the President. The remaining 10% of the contentious issues must zero in on devolution of the Central Government to the districts. This and the rest of fine-tuning the entire document must be left to a small number of experts to save on time and resources.

One more thing; seeing how polarized Kenyans are when it comes to the constitution, we must be careful to avoid local sitcom experts on our TV sets as our reviewers. They will never agree on anything. They have never agreed on anything. We must go the Kriegler and Waki route. We must compose this team of foreign experts and supplement it with apolitical respected judges, not scatter brains.

Another thing, let us avoid like a plague individuals seen to be partisan or aligned to individual political barons. They will never agree. They will be busy feathering their nests while pulling in opposite directions.

Yes Madame Martha Karua and Prime Minister Raila Odinga; resist the pressure and lock out stakeholders from the review this time. They have had their chance in the past and blew it.