THE KENYA CONSTITUTION TEAM SHOULD LEARN FROM BOMAS FIASCO

THE STANDARD
NAIROBI, KENYA
14/03/2009
By Alex Ndegwa

Justice Minister Martha Karua says the Constitution of Kenya Review Act will be amended to reinstate provisions of the Reference Group (RG) to stop the grumbling civil society.

Before passing the law to jump-start the constitutional review last year, Parliament deleted a schedule that listed 30 interest groups that were to each nominate a representative.

Representation

The lobby groups did not take the amendment kindly. The National Civil Society Congress cried foul after the deletion of the Fourth Schedule, claiming it was a plot to sideline them from the process.

To push the case for the RG, the civil society argued it provided "a formal way of participation and consultation with the people of Kenya".

The RG is to be convened by the nine-member Committee of Experts, which is preparing a draft constitution, to participate in consultations to resolve a deadlock.

Should Parliament fail to ratify the proposed constitution, says the Act, the Parliamentary Select Committee and the Committee of Experts shall meet to address disputes in the document and make recommendations to the National Assembly.

The RG shall be invited to this meeting chaired by the chairperson of the experts’ team to offer suggestions on how the contentious issues may be resolved.

This explains why the stakes are so high and everyone is jostling to have a slot at the negotiations table.

The schedule listed professional associations, religious groups, workers’ unions and other non-State actors that would choose representatives to engage with the committee of experts.

Karua assured the civil society at a consultative meeting on Thursday the schedule would be reinstated once Parliament reconvenes. The assumption is MPs will play ball.

The amendment would be contained in The Statute Law (Miscellaneous Amendments) Bill alongside others to harmonise references to the Constitutional Court and the Interim Independent Electoral Commission.

In its current form, the Act still refers to the disbanded ECK and the High Court, yet it was agreed disputes would be lodged with the special court.

Karua, however, cautioned the opportunity should not open a floodgate of amendments that would "distract us from the core process of writing a new constitution".

Closing Loopholes

It was a pointed response to the civil society that has taken the position that the review law "is very weak" and "also littered with the same loopholes" that have derailed previous attempts.

The team of experts headed by Nzamba Kitonga has settled down for business to sift through voluminous drafts, identify contentious issues and how to resolve them, solicit views from the public and, hopefully, craft a suitable document.

The upshot is that energies should not be wasted in engaging in endless debate on the Act and allowing busy bodies to throw in all manner of hurdles on the path to the fabled new constitution.

Hopefully, lobby groups do not have in mind the constituent assembly they floated to make the process all-inclusive and democratic.

No one serious about delivering a new constitution would pursue a repeat of the Bomas fiasco about four years ago.

There is also the clamour to have a ‘yes-yes’ situation whereby two drafts of the constitution — for instance, a parliamentary and a presidential system — are presented for Kenyans to choose the appropriate one.

To buttress the case for a new constitution is the battered trust key institutions such as the Judiciary and police are grappling with and the emerging worrisome trend to fancy all foreign interventions.