Tuesday, September 23, 2008



The Standard
Nairobi, Kenya
September 23, 2008

By David Ohito

The reform bells are ringing across the country again. They have been triggered by reports of the tragedy that befell Kenya in January and February.

The Independent Review Commission chairman, Justice (rtd) Johann Kriegler put it straight, loud and clear — "fix the mess or the mess returns to haunt you".

"Before you know it will be 2012 and it is going to be another repeat of an election year where each time you are beset by pain and suffering instead of joy," Kriegler said when he handed over his commission’s report to the President last week.

"Elections should be about the people of Kenya, a statement to the leadership. Elections should be an expression of national solidarity, a joint step towards the future of the country, not an occasion to kill one another over land or historical injustices," Kriegler added.

From Parliament to the Judiciary, land matters to Electoral Commission of Kenya (ECK), the country is awash with calls for minimum reforms with politicians and lawyers arguing it is time we embraced it ahead of the comprehensive constitutional reforms.

From the push for new land laws, review of constituency boundaries to crucial piecemeal amendments in the Judiciary and electoral laws and Parliament, the mood is set.

Legal framework

The new constitutional review attempts are on hold because two crucial Bills that would midwife the process are stuck on the racks of Parliament, which is on recess until October 7.

The Bills are Constitution of Kenya (amendment) Bill 2008 and The Constitution of Kenya Review Bill 2008.

Already Justice Minister Martha Karua has opposed the constituency boundary review, arguing it should be packaged with Constitutional reforms. It means two months have been lost in terms of setting up structures for the review process.

The mediation agreement proposed that a new Constitution be realised within 12 months from the date of legislation of the legal framework by Parliament.

Without the legal framework, the process cannot commence. It reflects lack of sustained political will to conclude Constitutional review.

Parliament itself has undergone considerable reforms, but still needs its own calendar and powers to approve public sector appointments. At least there is live coverage of part of the proceedings.

For the first time, MPs will be able to scrutinise the budget proposals and make amendments. It will no longer be exclusively the function of the Finance Minister or the Executive to draw the budget.

Some of the Standing Orders — the new rules and regulations of Parliament — take effect when it reconvenes and House Speaker Kenneth Marende says MPs will undergo transitional training of the new rules until they master them before adoption.

Parliament must be reformed to be the true representation of the people’s dreams and aspirations and for the just governance of society.

Historical injustices

Senior counsel and former Kabete MP Paul Muite says the land issue remains complex in Coast, Central and Rift Valley provinces, which must be addressed and resolved.

"Land questions must have a large measure of consensus. It is not possible to take complicated land issues to a referendum. The contents of that which is to be subjected to a referendum need consensus. And consensus needs time, patience, skill and plenty of give and take. People must listen to the concerns of those involved," Muite argues.

"There are many historical injustices, some dating back to the mid 19th Century when the British colonisers grabbed land and dispossessed owners in Rift Valley and Central provinces. The land issue alone, if not resolved, has the potential to delay the realisation of a new Constitution or derail it altogether," Muite says.

Lands Minister James Orengo says secure land rights are universally critical for peace, stability and economic development.

"Land rights must be embedded in the Constitution. The Cabinet will discuss the proposed Land Policy. We have not had a policy since independence," Orengo said.

"Land reforms must be anchored in the Constitution and we must set out a comprehensive mechanism for resolving historical land injustices," Orengo says.

On calling for the electoral reforms, the experts argue acceptability of an election depends on the extent to which the public feels the officially announced results accurately reflects the verdict of voters on candidates and parties.

Law weaknesses and inconsistencies in Kenya’s legal framework and management system for elections need urgent and radical attention.

Kriegler found ECK lacking necessary independence and functional capacity to discharge its constitutional mandate because of weaknesses in its manner of appointment, composition and management system.

Lean ECK

Experts say Kenyans want a lean professional ECK, with six to nine commissioners, a policy-making body and supervisory board selected in a transparent and inclusive process, interacting with a properly structured professional secretariat.

The new electoral body would manage recruitment of new voters, the election and post-election procedures and advise government, Parliament and stakeholders on desirable changes to electoral law.

"It is imprudent to have one organ charged with policy formulation and its execution or implementation," Muite says.

Like Kriegler says, "Kenyans must agree on a system which puts to rest the continuous discussion about a new electoral system."

Central Imenti MP Gitobu Imanyara says "with commitment and goodwill from leadership, Parliament can be able to set a time for a new Constitution".

"The dilemma is that the business of the House is still determined by the Government and if it slows pace, a new Constitution would be delayed," Imanyara, who is a lawyer, says.

"The mood of the country is ready for a new Constitution. I pray that Justice Minister remains focused and energetic about delivering it," Imanyara adds.

Kenyans, Muite said, must decide whether they want to retain a Presidential System or go for a Parliamentary one.

Hybrid system

The hybrid system in any form has inherent potential for conflict. The examples have been many in the six months of the coalition.

"Despite the best efforts by both President Kibaki and Prime Minister Raila Odinga to work together sharing executive authority, strains and stresses are obvious. There are those who have not accepted the reality of shared executive authority," Muite says.

Muite and Imanyara warn that the debate on the structure of Government, Presidential, Parliamentary, or a hybrid system too might take much longer than anticipated.

Marende says, "Kriegler has fired the warning salvo. We must embark on reforms or we perish."

The completion of the comprehensive review is crucial to resolving the underlying causes of the 2007 post-election violence, which were identified as the land question, ethnicity, poverty, and inequitable distribution of wealth.