Sunday, September 21, 2008



September 21, 2008
Sunday Standard
Nairobi, Kenya
By Oscar Obonyo

The constituency boundary review will not be undertaken outside the wider framework of comprehensive constitutional review.

Justice Minister Martha Karua says while the debate on constituency boundaries is healthy, it must take into account other efforts to end the impasse on reforms.

The minister is categorical that constituency boundary review cannot precede the constitutional review.

"The issue of constituency boundaries is to be discussed within the constitutional review context. There should be no controversy about how the two should be approached," she said.

There have been doubts about whether the political elite is keen on a new law. The growing cynicism was captured on Wednesday when chairman of the Independent Review Commission, Mr Justice Johann Kriegler, expressed doubts whether the country will have a new constitution within a year.

This is in line with the National Dialogue and Reconciliation talks chaired by former UN Secretary-General Kofi Annan.

The talks were necessitated by last December’s disputed presidential poll outcome and the subsequent plunge of the country into political violence.

Kriegler observed that while his mandate did not include law reforms, the road to a new constitutional order has been agonisingly long.

The judge warned against complacency following the formation of a coalition government that restored peace in the country.

Open to dialogue

He observed: "It has taken too long. It does look like there is no sense of urgency even after so many years of false starts and post-election violence."

On Wednesday, Karua avoided discussing the thorny issue in specific terms. Instead, she said the matter will depend on how Parliament expedites the two Bills before it, which should provide the roadmap to a new constitution in a year as agreed at the Serena talks.

Against this backdrop of equivocation and apparent apathy, the earliest the country can have a new constitution is 2010 if the House can pass into law the Bills before the Christmas recess. The wait is likely to be longer to accommodate a referendum, which the minister said is mandatory.

Open to dialogue

Karua, however, favours a comprehensive constitutional review instead of the piecemeal approach being proposed by the Law Society of Kenya.

Last month, the constituency boundary review threatened to relegate the quest for a new constitution to the backburner when Deputy Prime Ministers Uhuru Kenyatta and Musalia Mudavadi took divergent positions on how to proceed.

On the one hand, Uhuru stoked controversy when he said the constitutional process should be delayed until the boundary review is completed. Mudavadi, on the other hand, read mischief in the proposition and termed it a deliberate attempt to divert attention from the urgency for a new constitution.

The quest for additional constituencies has become a critical issue in what analysts perceive as anticipation for a referendum and a parliamentary system of government.

Constituency splits, which should have taken place prior to last year’s General Election, are likely to decide the positions of party leaders as the parliamentary system of government becomes popular.

Opposed since it was mooted in the Bomas Constitution Draft, the parliamentary system has become the centrepiece in constitutional review following the enactment of the National Accord and Reconciliation Act, which created the post of Prime Minister.

In parliamentary democracy, the prime minister — majority leader in the House — usually forms government, while the president is titular head of State.

Backers of constituency boundary review and constituency splits are hoping for numerical strength in the next Parliament to enable them to head government.

Agenda 4

The divergent positions on how the law review should be approached precipitated fears that the envisaged reforms may not be on the cards any time in the near future until different political interests are soothed.

Although he supports a constituency boundary review first, Nairobi Metropolitan Minister Mutula Kilonzo said last week, after the ODM-Kenya’s retreat in Nairobi that the urgency for the constitutional review had dissipated.

"I sense a withdrawal, retreat from the serious commitment to the National Accord and Reconciliation Act, particularly regarding the Constitution," said the Mbooni MP.

Kilonzo and Karua were members of the PNU team that negotiated the end of the post-election chaos.

Kilonzo holds the view that Agenda 4 of the National Dialogue and Peace talks must be dispensed with in full and with urgency to guard against a possible relapse into violence.

"You cannot address the fear, and the hostility that engulfed this country by addressing a single item like the ECK, the Judiciary or Parliament," he argued

On Thursday, Karua steered clear of giving the process a timeline, saying it is the realisation of the new law that will be predicated on when Parliament will dispose of Constitution of Kenya Amendment Bill and the Constitution of Kenya Review Bill, both of which are before the House.

She said there is need for a review to allow for more constituencies without changing the Constitution. It is a matter of fact that some constituencies have far too many people to be represented by one MP.