Tuesday, November 17, 2009




Today, the country will be watching with great anticipation the official release of the Draft New Constitution, a model developed by the Committee of Experts.

The draft is based on a year’s worth of work and proposals from Kenyans of multiple interests.

In this column, we have remained focused on this subject given its compelling reason as a matter of public interest.

We underscore the need for an institutionalised reform process, which must remain people-centred while underpinned by the wider collective interests of Kenyans.

And this means that it must not seek to serve any of the current political parties or, for that matter, any of the political actors’ interests.

The model and form of a new constitution must remain a matter aimed at engendering national stability, accountability, representation, protection of rights and assurance of justice and the prosperity to all current and future generations.

As a people, we have witnessed sustained quests for a new constitution, but sadly, it has become an elusive dream.

Why has this been so? Every time we think we are coming closer to achieving consensus, the process is mismanaged and infiltrated by vested interests.

Yet this time round, thanks to the role of Committee of Experts and lessons from the current governance and political system, we have a unique opportunity.

We have seen enough theatrics and leaders must now engage in serious consensus-building, not endless politicking and positioning for leadership.

Last week’s retreat of the Cabinet in Mombasa, in the so-called bonding sessions, indicated a simmering political polarisation over the form and structure of governance preferred by the competing political interests.

And no matter how much denial emerges from the political leadership, it was apparent from the body language that the jostling continues.

The sideshows and emerging whispers reveal we are not out of the woods yet on consensus about the governance structure.

What, then, are the realities at stake, as we begin today to debate the model of a new constitution as proposed by the Committee of Experts?

Firstly, the Committee of Experts role in the new constitution must be, and remains, facilitative and cannot be prescriptive in content and form of the constitution.

Methodical and thorough

As experts, they have been charged with the responsibility of reviewing the wishes of the people, as presented in the numerous past hearings, proposals and counter-proposals.

Further, we expect that as they unveil the proposed constitution, the committee demonstrates that theirs was a methodical and thorough exercise.

In the end, it is in the research and in the navigation — while drawing on lessons from other similar jurisdictions — that will make an ultimate difference.

Since the majority of the experts are Kenyans, they do understand our unique weaknesses and the need for checks and balances with respect to the exercise of authority and political power.

The emerging proposals show the experts have done their homework and created a structured framework for national dialogue.

They cannot and must not seek to impose individual or their collective opinions or will, as that remains the responsibility of Kenyans.

The Experts, however, must appreciate the enormity of the responsibility placed upon them by the people collectively.

Thus, they must continue to demonstrate and maintain independence, while resisting meddling or agenda by vested interests. Indeed, that is their public duty calling.

Secondly, on the divisive issue of executive Prime Minister versus executive President, we need to avoid focusing on current holders of these positions.

We must, however, draw useful lessons from the weaknesses, while taming excesses, ensuring accountability and managing the exercise of authority.

We all desire a strong, but accountable government without vesting absolute power on any one individual or institution. Hence, not a situation vesting absolute power to the executive Prime Minister and never in the executive Presidency.

Power must be a shared, but in a functional system that enables the people to have a say in the running of their government.

It must not lead to paralysis or a dysfunctional system of constant power struggle.

The proposal on some form of hybrid system of government is welcome news.

This must, however, not be decided by Cabinet but by the people through a referendum.

It must, moreover, be reflective of the wishes of the people, not political parties or any of the current political actors.

Tomorrow will usher in a new breed and generation of leaders. Thus, we must now interrogate details of the proposed constitution and decide what would be workable and suitable for a better future political dispensation.

Critical stage

Thirdly, on the subject of the constitution, it will not be the collective responsibility of Cabinet, which matters, but the wider public consensus, as well as that of Parliament, being a house of people’s representatives.

All other stakeholders — including political parties and religious organisations — must not forsake the people through divisive partisan interests.

We are at a critical stage in which everyone must seek to narrow differences and engage in debate of consensus building, to achieve convergence.

It is not a Party of National Unity (PNU) or Orange Democratic Movement (ODM), or indeed President Mwai Kibaki’s or, for that matter, Prime Minister Raila Odinga’s constitution, but every Kenyans constitution.

This is a matter of compelling public interest!

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