CONSTITUTIONAL REFERENDUM IS IMMINENT

Albert Lemasulani | Photo Courtesy

By Albert Lemasulani

Since I attained the age where I can comprehend the political landscape changes in Kenya, we have gone through various discourses as a nation.

Kenyans for long agitated for an expanded democratic space since independence and we have witnessed sustained pressure by the fathers of Democracy led by the Rt, Hon. Raila Amolo Odinga (African Union High Representative for Infrastructure Development), The Hon. James Orengo, former President H. E Emilio Mwai Kibaki, the late Martin Shikuku, Anyang’ Nyong’o, Mukhisa Kituyi, George Anyona, Paul Muite, Gitobu Imanyara, Timothy Njoya, Njeru Kathangu among many gallant sons and daughters of Kenya through out the Moi presidency which saw the Saba Saba movements challenging the authoritarian President Moi leadership.

Raila Amolo Odinga | Photo Courtesy
Siaya Senator James Orengo
Former President Mwai Kibaki
Former Butere MP Martin Shikuku

Bloody and violent were these initiatives that saw most of the above mentioned fathers of democracy arrested and detained and many other fiery people injured and lost lives. These sustained agitation for democracy finally bore fruits with the former president Moi declaring the famous section 2A which declared Kenya a one party state repealed and ushered in multi party era.

Former President Daniel Moi

This didn’t bring the desired changes but opened the opportunities to pursue democratic leadership. The coming together of the opposition leaders and parties to form a united opposition under National Rainbow Coalition (NARC) with former President Mwai Kibaki as their flag bearer brought to an end to the authoritarian rule of Kenya National Union (KANU) party and President Moi ushering in the first Democratic government.

The Kibaki government is credited of turning around the Kenyan Economy and major infrastructural projects such as the Thika Super Highway and the Isiolo – Moyale Highway that’s have connected Kenya to Ethiopia completing the Trans-African Highway. These were deveopments never seen before.

The current National Government Constituency Development Fund was also born during the Kibaki Government. Faithful to their pledge to review the constitution, the Kibaki government began the process of the review of kenyan constitution. Leading Constitutional experts led by Prof. Yash Pal Ghai were brought on board to guide the constitution review process under the Kenya Constitution Review Commission (KCRC).

Professor Yash Pal Ghai

KCRC began its work going around the country to collect Kenyans views on the review of the constitution. This process culminated with the famous zero draft that came to be known as The Bomas Draft. Delegates were brought from all over the country to Bomas to validate the draft. We all believed in President Kibaki as pro-democracy; he himself having gone through the struggle and suffered under the hands of dictatorial regime.

Unfortunately, President Kibaki was ill advised by the political mandarins around him led by the former Attorney General Amos Wako who has oversaw the repressive regime of former President Moi abuse human rights not to let the will of Kenyans prevail through the Bomas Draft (which was the zero draft). These political mandarins retreated to decimate the Bomas draft producing a diluted constitution draft that betrayed the aspirations of the fathers of democracy in Kenya.

CKRC means – Constitution of Kenya Review Commission

To those of us who saw the proposed constitution will agree that it was just the old constitution that got a new cover. The political mandarins went ahead and duped President Kibaki to approve the referendum on the defective constitution draft famously known us Kilifi Draft. The defunct Electoral Commission of Kenya (ECK) was cleared to hold referendum on the new defective constitution in the year 2005.

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We members of the civil society teamed up with the fathers of democracy led by the Rt. Hon Raila Amolo Odinga to undertake civic education on the proposed defective constitution that was meant to entrench the same culture of impunity of the previous government regimes that we chose to end through the election of President Kibaki. The declaration by the chairman of the defunct Electoral Commission of Kenya the question for the referendum on the constitution and assigning the symbols of Orange for ‘NO‘ and Banana for ‘YES‘ set the stage for one of the most hotly contested referendum.

Members of the public queuing to vote in the 2005 Referendum

To the lovers of democracy there was no doubt on which fruit to have in your dinner table; Orange it was. We were so passionate that some of us banned eating of bananas in our households. The Banana team (the team supporting the proposed adulterated constitution) suffered a resounding defeat which clearly mirrored the Kenyans Wanjiku determination to get nothing short of a constitution reflecting her wishes of how she will be led and governed.

The political mandarins advising President Kibaki didn’t see this coming and the results demonstrated Kenyans aspirations for a constitution founded on their will and not the political class. Keen to hold on to power in the shadow of President Kibaki and fear of facing the same devastating defeat in the coming 2007 General Elections they devised a scheme to block any attempt to reform the Electoral Process and the ECK.

Kenyans went to the 2007 General Elections under serious allegations of lack of fair playing ground; concerns supported by the International Community. The political mandarins were determined to have President Kibaki back in power in whatever way through a systematic rigging that was never seen before. Classic drama of switching power in Western region, Mt. Kenya region (Embu, Tharaka Nithi and Meru regions) and the then chairman of ECK on live television admitting that he cannot reach his regional elections officers despite them provided with satellite phones that can sustain signal even in the deepest hole one earth. The then Elections Boss made very clear that he cannot accept cooked results.

This set stage for a hotly contested election results that were immediately rubbished by the opposition which catapulted Kenya into political anarchy which came to be known as the Post Election Violence (PEV). More than 1000 Kenyans souls were lost and over 500,000 people displaced and till today more than 10 years some are still in refugee camps.

The International Community always have soft touch to our nation and they came handy putting pressure on the political leaders to negotiate and resolve the impasse. It took the bold move of the former United Nations Secretary General, the late Koffi Annan under the auspices of the Eminent Personalities of Africa after the negotiation hit a snag to bypass the political mandarins and engage the top leadership of the two feuding sides namely President Kibaki and the Rt Hon Raila Amolo Odinga directly finally delivering the badly awaited news to the Kenyan nation of a truce reached.

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This led to the formation of the coalition government and raft of proposals dubbed “National Accord” to ensure that Kenya will not fall into anarchy again. Amongst them is the formation of three key commissions:-

1. The Constitution of Kenya Review Commission (CKRC) headed by prominent lawyer Nzamba Kitonga and was anchored by Committee of Experts whose Chief Executive Officer Dr. Ekuru Aukot is the current Third Way Alliance Leader and proponent of ‘Punguza Mizigo’ initiative to review the Kenyan Constitution to provide Kenyans with set of laws based on their submissions and acceptable to them;

Ekuru Aukot, former CEO Committee of Experts and the current party leader of Thirdway Alliance

2. The Kriegler Commission headed by former South African retired judge Johann Kriegler to investigate what went wrong in the election process and give recommendations on what needs to be done to prevent bungled elections in future;

Retired South African Judge, Johann Kriegler

3. The Waki (Headed Justice Philip Waki) Commission to investigate the post election violence with a view of bringing people responsible for incitements and organizing rogue criminals to attack innocent Kenyans in various parts of the country during the post election violence to face the law. This led to the famous Waki envelop that was handed over to Luis Moreno Ocampo who was the first Chief Prosecutor of the International Criminal Court based at the Hague, Netherlands after Kenya failed to set up local tribunal to try the suspects in accordance with the recommendations of the report of the Waki Commission.

Justice Philip Waki

These commissions did their work diligently and submitted their reports to the coalition government and the Koffi Annan led panel.
Two commissions reports (the Waki Commission and the CKRC) set Kenya in a transformation path.

The Waki Commission delivered 6 prominent Kenyans to the Hague based International Criminal Court to face charges related to crime against humanity, deportation, inhumane acts, murder, persecution and rape. Though these cases were finally dropped due to lack of sufficient evidence but they have served as a deterrent to any person irrespective of status in society to receive their baby to incite people to violence and get away with.

International Criminal Court

The CKRC report produced the Kenyan Consitution 2010 draft that was submitted to Kenyans to either endorse it or reject through a referendum in 2010. Despite notable senior political figures in the country running well oiled campaigns against the consitution, Kenyans were ready to receive their baby conceived under trying moments and events that led to blood shed by overwhelimingly voting to endorse it.

President Mwai Kibaki during promulgation of the new Constitution, 2010

Across Kenya and world wide it was hailed as the best consitution in the world and the best Kenya could get at the momement and under the circumstances the country was in at the time.

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Constitution of Kenya, 2010

What are some of the key benefis the Kenyan Constituitution 2010?

1. Devolution – for the first time power has been decentralised from Nairobi to 47 counties accross Kenya which gave birth to the county governments which are semi-autonomous and which operate legally like the national government and receive funding irrespective of the political standing. This has addressed marginalisation and for the first time places like Samburu, Isiolo, Marsabit, Turkana amongst others are recieving Billions of shillings to drive socio-economic development. Not withstanding massive corruptions in the devolved units we can report some positive impacts to our communities. The purpose of devolution is to bring resources and governance near to the people.

2. Gender equality – the 2010 constitution has clearly addressed the perenial gender inequality at the expense of women and provided that no more than two-thirds of any gender shall consitute a public office or institution whether through elections or appointment. This provided for women representatives in every county to address lack of women representation in parliament. This is a milestone achievement towards gender equality and providing our women equal opportunities as men in leadership and job opportunities to stear our country socio-economic development without leaving anybody behind.

3. An independent Judiciary that is demonstrated by the Supreme Court of Kenya nullifying the 2017 Presidential Election results. Despite corruption within the Judiciary, Executive and the Legislature schemes to frustrate the Judiciary, there are landmark rullings against the government and untouchables in favour of the poor Kenyans.

4. Establishment of Independent constitutional offices and commissions to provide checks and balances in the country. These offices include Office of the Director of Public Prosecutation (we are all now conversant with DPP Noordin Hajji and his achievements in collaboration with other investigative agencies and arresting senior government officers to face prosecution on various issues from corruption allegations and murder), EACC, DCI, Controller of Budget, Auditor General, Salaries and Remuneration Commission, Commission of Revenue Allocation, National Land Commission amongst many others. These offices and commissions have been seen acting to ensure the rule of law is observed in public service.

5. The Equalization Fund – the constitution povided for a fund to the tune of 5% of the National Budget to fund development projects in marginalized counties. This is a critical boost to the under developed and marginalised counties in Kenya.

These are just a few key positive aspects in the 2010 constitution. Temperatures are already rising towards an imminent constitution referendum being driven by Punguza Mizigo Initiative and the Building Bridges Initiative(BBI).

As the county assembilies all over Kenya receive these bills proposing consitution ammendments its prudent for the assembilies and us Kenyans to be vigilant and ensure the above gains and provisions guaranteeing democracy and protection of human rights are not watered down.

Lets put all these proposals for consitution ammendments in critical analysis to ensure that what Kenyans fought for is not lost through selfish political deals aimed at achieving political power.

Albert Lemasulani is a commentator on social, political and economic issues based in Nanyuki, Laikipia County.

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Whispers from the North is an online platform that appreciates the ecological, cultural and socio-economic diversities of Northern Kenya. We also acknowledge that the lives of the communities of northern Kenya has been shaped by a number of intrinsic and extrinsic factors which have led to complex challenge that calls for a multifaceted approach.