Ghai against referendum on draft law

Thursday October 29 2009

Former Constitution Review of Kenya chairman Professor Yash Pal Ghai addresses participants at a workshop in Ufungamano House January 14,2009.  Ghai says the final draft constitution currently being developed by the Committee of Experts should not be subjected to a referendum. FILE

Former Constitution Review of Kenya chairman Professor Yash Pal Ghai addresses participants at a workshop in Ufungamano House January 14,2009. Ghai says the final draft constitution currently being developed by the Committee of Experts should not be subjected to a referendum. FILE 

The final draft constitution currently being developed by the Committee of Experts should not be subjected to a referendum, a law expert has suggested.

Prof Yash Pal Ghai, a former chair of the defunct Constitution of Kenya Review Commission further wants politicians to be kept of the process, saying they will derail it.

While making a presentation at the just concluded European Development Days conference, the constitutional lawyer said subjecting the draft to a referendum would be too expensive for the taxpayer.

Prof Ghai made the suggestions as Justice Minister Mutula Kilonzo told Kenyans to expect the draft constitution by November 9. Mr Kilonzo said that this would give Kenyans the opportunity to discuss the draft before it goes back to the politicians and the experts.

“The harmonised draft is expected in the next 10 days.. We are actually late because we even expected it earlier at the end of September,” Mr Kilonzo said.

He was speaking at Strathmore University where he opened a leadership and ethics conference. He appealed to all individuals who were opposed to any aspect of the constitution to ensure that their concerns do not “kill” the entire document.

Prof Ghai’s advice seems to emanate from continued squabbles over some aspects in the constitution. A group of Christians have threatened to vote against the document int he referendum if it retains the Muslim Kadhi courts.

Some politicians are also asking that a formula for boundary review be determined before the Committee of Experts comes up with a system of government.

Prof Ghai also noted that a referendum might also further divide an already polarised country, as was witnessed during the last referendum in 2005.

But he proposed that more time be added for consultations, especially with members of the public, to ensure that all their views were taken in consideration.

The law requires that the Committee of Experts publishes the draft for one month to allow public discussion on the document. The experts will then review the document, taking into consideration the views made before fowarding it to the Parliamentary Select Committee for consensus building.

“The one month allocated for consultations with the members of public is simply not enough. It should be added to at least three months so that we get as many views as possible for inclusion into the new document.”


He went on; “And once this has been done, I do not see the reason as to why we should go again to a referendum since the document has already got the approval of the public.”

“You don’t need a referendum if the process is participatory. Let us give people enough time to review the draft and we shall indeed have the much sought after document.”

Prof Ghai said quite a lot of countries have had their constitutions made without subjecting the document to a referendum, saying Kenya should not be an exception.

On Thursday, the constitutional expert registered his displeasure at how politicians were debating matters relating to the constitution and how some of them were threatening to shoot it down if their interests were not taken care of.

“They are only seeing it as an instrument of power and nothing else. That is the saddest thing,” he said.

“These individuals are showing a lot of contempt to the work being done by the experts. Unless we protect the experts from these individuals, I am afraid we are not going anywhere,” he went on.

Added the lawyer, “I am afraid that nothing will come out of this process if we leave the political leaders to continue doing what they are doing now."

Similar concerns were also raised by Mr Kilonzo who said that the country should not allow a single issue to scuttle the current process. He even suggested that the document goes to the referendum without the contentious aspects.

“We have to have a new constitution especially in terms of governance which was what led us to a crisis after the 2007 elections. We must not allow the country to go back to such a situation,” said Mr Kilonzo.