Thursday, April 29, 2010




Posted Wednesday, April 28 2010 at 17:57

It has been a long and difficult road to the Proposed Constitution. It must not be a wasted journey if, in an attempt to by-pass legitimate concerns, we do not get a document supported by all Kenyans.

Such is the pressure for the proposed document to be sealed, signed and delivered in a referendum that the need to ensure it is based on consensus has all but been forgotten.

I abstained in the 2005 referendum because I believed the manner in which the then draft was put forward was deeply flawed and could divide the country. I fear now that the handling of the latest phase of preparing the current draft is causing unnecessary division and disharmony.

Many of those pushing for a “ratify now, change later” approach are ignoring the legitimate concerns of some people regarding certain clauses in the draft, whilst being less than honest in their real strategy – to ensure that once the constitution is ratified, further changes will be unlikely.

This may be a successful short-term strategy to ensure rapid ratification, but it could create a running sore in the body-politic, resulting in years of dispute. Some of those saying “No”, or “change now, then ratify” however, are equally being unclear in their approach.

They have yet to articulate in detail their objections and the alternatives they propose. They must do so. Both sides are courting disharmony and there is no need for it. Broad support based on consensus is needed if the new constitution is to be successful in the long term.

Some of the concerns raised by the proposed constitution were expressed in Parliament, but it failed to marshal the two thirds majority needed to effect amendments, or indeed, to even raise a quorum to put matters to a vote.

The draft was technically passed in Parliament, but not with unanimity. Some issues were left unresolved. But what options do those with genuine concerns about the draft have now? And how can we move forward peacefully and in a spirit of unity?

Fortunately, there is a solution provided in the proposed constitution itself in which the “Yeahs” and the “Nays” can be accommodated, ensuring the ultimate success of the new constitution. Chapter 16 deals with amendment of the constitution and in particular, under Article 257, how an amendment can be initiated through a ‘‘popular initiative signed by at least one million registered voters’’ and formulated into a Bill by its promoters.

Could this then - the use of the ‘‘popular initiative’’ - be the best way to resolve the remaining issues and to unify the country behind the new constitutional settlement? Action could be taken now by those seeking amendments to guarantee that the issue is not swept under the carpet.

Those opposing the draft should identify those clauses that give them the greatest cause for concern and clearly articulate the amendments they seek. That done, they can then prepare a memorandum as the basis for the collection of one million signatures.

It is both practical and appropriate that for the long-term peace, harmony and unity of our nation, we should let the people resolve these troublesome issues. I believe the draft provides the means of doing so. Let us complete the journey together.

Mr Biwott is a former Cabinet minister.

Add a comment (4 comments so far)

  1. Submitted by Obeid Posted April 29, 2010 08:15 AM

    I hope the church leaders will listen to the voice of reason..Church leaders must approach this issue with an open heart and a recognizable, genuine will for a solution. They must crack open their encrusted shell of ideology built up over years and slowly melting away traditional prejudices.

  2. Submitted by Thabari Posted April 29, 2010 12:39 AM

    On the surface, Biwott's solution seems reasonable. The truth, however, is that on the issues the NO proponents stand on, Kadhi courts, abortion, land regulation and majimbo, the issues were exhaustively debated, voted on and a consensus arrived at, which is the current draft. As a democratic society, the losers must accept and obey the new law because, as @werssylwer points out, actually changing the law will be difficult, as it should be, in spite of the million signatures. For big landowners, the time to sell is now.

  3. Submitted by vicman Posted April 28, 2010 08:27 PM

    This appears to be a total solution.I hope the Church will listen to your advice.

  4. Submitted by werssylwer Posted April 28, 2010 08:16 PM

    Mr. Total Man, I was also leaning towards the idea of collecting a million signatures but am informed that after collection of the signatures, those very clauses will again be subjected to another referendum which to me is absolute waste of time and money. Iread a comment under another article where someone said to change this law after the referendum will require a revolution and I believe him if making changes has been designed in a way that its impossible to achieve. This has led to hardening of positions on both sides.