Sunday, December 21, 2008




One of the most important tasks allocated to the 27-member Parliamentary Select Committee (PSC) formed last week is the appointment of a committee of experts to guide constitutional review.

An ambitious timetable is in place through the Constitution of Kenya Review Act intended to see Kenyans vote on a new supreme law before the end of next year.

In an attempt to avoid the pitfalls of the last review attempt, which ended in 2005 with a Government-modified draft rejected in a referendum, it has been decided to let a panel of nine jurists that specalise in constitutional law thrash out contentious issues in three draft constitutions.

The interplay of partisan political interests in selecting this crucial team — composed of six locals and three foreigners — could have far-reaching implications for the reform agenda and the future of the country. It is, therefore, important that the PSC collectively and individually rise above the temptation to saddle the committee with hired guns or partisan campaign contributors. These would only perpetuate the push for short-term party, tribal and individual positions that bedevilled the last process.

We particularly wish to remind leaders of the partisan warfare begun by the PSC on Constitutional Review formed in late 1999 and chaired by Raila Odinga after he struck a deal for his now defunct National Development Party to work with Kanu.

The body, responsible for appointments to the Constitution of Kenya Review Commission (CKRC), allowed interested politicians like Shariff Nassir, Musalia Mudavadi, Joseph Kamotho, Kalonzo Musyoka, Nicholas Biwott and others to bring on board commissioners of their choice.

CKRC commissioners were soon being reported in fisticuffs at their Hazina Towers offices, embezzlement scams and other unprofessional conduct.

This must not be repeated.
The sort of constitutional expertise we need must be intellectually honest, aware that their responsibility is not to the political leadership, or just to the 37 million citizens of this country, but also to their descendants.

We need people of integrity, not political attack dogs. They must be faithful to the electorate’s expectations, whether or not this also suits the changing desires of key political players.

Reducing the powers of the presidency, for instance, must be central to whatever decisions are made regarding the character of the Executive. Whether Kenya has an executive elected President, a constitutional Head of State with an executive PM, a Parliament-elected President and a PM or whatever, there must be decentralisation of power and decision-making, providing greater checks-and-balances in Government.

The PSC must not take lightly the responsibility entrusted to it to find those rare individuals who will work assiduously to reach an agreement on basic constitutional principles this country has spent two decades debating.Whether it is capable of rising to the challenge, only time will tell. We remain sceptical, however, given the strong tendency of the key partners in the Grand Coalition to disregard both public opinion and political pledges.

The PSC itself is a clear example of political players reneging on promises they made to the electorate. With only six women, it falls short of the Government’s pledge to allocate 30 per cent of all appointments to women. This is hardly surprising as even the national delegates conferences of the key coalition partners failed to show any semblance of either internal democracy or fidelity to promises on party reform.

The prospect of similar ‘shortcuts of principle’ afflicting the review process will worry anyone hopeful that a draft can be put together that will satisfy the electorate, rather than lead to yet another divisive referendum.

Pledges to the people on the delivery of a new constitution have been famously optimistic. Each has failed to take into account the complex nature of constitution-making.

We hope a good start this time round will reduce the chicanery that has prevented progress.