It's decision time for Kenya

On Wednesday Kenyans will begin queuing before dawn to make a historic decision that will significantly define the political landscape of the country for the foreseeable future, whatever the outcome.

On that day, more than 12 million registered voters are expected to either accept the proposed constitution and permanently alter the course of the nation’s history or reject it and restart the tempestuous search for a new order.

If Kenyans reject the proposed constitution, they will have voted to return to the starting point in the elusive and drawn-out search for the constitution that has cost the nation lives, property, tears and blood.

Should the proposed constitution pass, the country can expect to witness dramatic and historic changes in governance.

After promulgation

President Kibaki, Prime Minister Raila Odinga, Vice-President Kalonzo Musyoka and House Speaker Kenneth Marende would be first in line to take a new oath of office on the day the proposed constitution is promulgated. The oath has been prescribed by the proposed law in Schedule Six and is necessary to affirm that the State officials pledge allegiance to the new constitution.

The day of the “great oathing” will be about two weeks from the day the Interim Independent Electoral Commission announces the official results, expected on August 5 or 6.

All 222 MPs, judges and Cabinet ministers, their assistants and permanent secretaries will also be required to take a new oath on the same day.

The Chief of General Staff Gen Jeremiah Kianga, the Army, Air Force and Navy commanders, the director-general of the National Security Intelligence Service Maj-Gen Michael Gichangi and Commissioner of Police Mathew Iteere will also take a new oath of office.

“It will be one great day of oath taking. Nearly 400 oaths may be taken on that day,” constitutional law expert Kimutai Bosek told the Sunday Nation.

As Chief Justice Evan Gicheru takes his oath, he will be mulling over whether to pack his bags – since the proposed constitution prescribes that he leaves office in six months – or take the lesser job as a Court of Appeal judge.

Attorney-General Amos Wako is also in the line of fire and would have to pack his bags and leave the State Law Office in August next year. He will have been AG for 20 years and three months.

The exit of Mr Justice Gicheru and Mr Wako will be the harbinger of change in the Judiciary and the State Law Office where all judges will be vetted afresh by Parliament, a new Judicial Service Commission set up and the tenure of office for the AG cut to five years with the possibility of reappointment after election.

Some legal experts are of the view that President Kibaki will have to sacrifice a few months of his presidency and retire a few months before the due date under the present constitution to allow the new rhythm established by the proposed constitution to take effect.

The proposed constitution schedules thx next General Election for the second Tuesday of August 2012.

It is also expected that the country’s political architecture will change with the emergence of a crop of leaders who will now train their eyes on the new Senate seats and governors’ positions should the proposed law pass.

However, a group of professionals has already cautioned that Mr Odinga may be unable to function under the new constitution unless the special court set up to hear matters arising from the proposed constitution invokes its powers to spell out his oath of office.

“There cannot be a situation where one state official takes oath and the other is left out, and yet they are serving in the same Government,” lawyer Kimutai Bosek told Justice Sankale ole Kantai of the special court.

“Under the National Accord, the two principals run the government hand in hand, yet one takes oath and the other doesn’t, this is a constitutional crisis.”

But Committee of Experts director Ekuru Aukot does not think that the omission will have any major effect since the National Accord and Reconciliation Act which created the offices of Prime Minister and two deputies will remain in force under a new constitution until 2012 or the next General Election, whichever comes earlier.

The vice-chairman of the Parliamentary Select Committee on the Constitution Ababu Namwamba also thinks that there is no cause for worry.

“That is not a problem. Any office that existed will continue to exist, unless otherwise stated, for the rest of the life of this Parliament. The lawyers (who are saying otherwise) are splitting hairs.”

On Mon, the special court set up to resolve disputes on the proposed constitution is expected to deliver judgment on how the PM may take his oath of office.

But the real spadework will rest with Parliament. House Speaker Marende acknowledges that Parliament has a formidable task ahead.

“It will be incumbent upon Parliament to operalitionalise the new constitution by enacting various enabling statutes. Among them (is) the Commission on implementation  of the Constitution. Parliament has a heavy load which I expect MPs to surmount,” Mr Marende said.

“Parliament will be enacting over 70 pieces of legislation and Acts which is not an easy task, but we are up to it,” he said.

What if ‘No’ were to win?

“Kenyans will be so fatigued, and it may take several generations to take another shot. All the signs are pointing to an overwhelming victory. A constitution is about how a country is governed and how people enjoy their freedoms, and that is well laid out in this constitution. The rest escorts the real deal,” Mr Namwamba said.