Draft: Lawyers urge Kenyans to 'seize moment'

Lawyers have petitioned Kenyans to “seize the moment” and ensure a new Constitution is delivered by June next year.

Speaking Saturday at a Law Society of Kenya workshop at Nairobi’s Panari Hotel, Prof Githu Muigai, Dr PLO Lumumba and Mr Ahmednassir Abdullahi said despite the flaws in the harmonised draft, this was the only time that the country had to achieve a new Constitution.

“This is not a Constitution that we can afford to reject,” said Prof Muigai.

“The people want a new Constitution, if we have new problems going forward, then we’ll find solutions as we go along.”

As they agreed on the need for a new law, Mr Abdullahi also asked the committee of experts to “suspend” the security of tenure of the current judges to allow them to pack and go, because “with a new order, there was no room for baggage from the past.”

“This is the only chance we have to overhaul the Judiciary, otherwise, we may never be able to do it once the new law comes into effect,” he added.

The lawyer argued that unlike politicians who can be changed every five years, there was no provision to shake-up the Judiciary even in cases where some of the judges were incompetent or corrupt. He asked for judges, like everyone else, to be given a contract.

Dr Lumumba lauded the devolution aspect as proposed in the draft but rubbished the huge number of counties --74 regions-- saying the Kenyan economy cannot support the counties.

“The regions are too many, while some are too small with a very small tax base (for any meaningful development),” said Dr Lumumba, the former secretary the Constitution of Kenya Review Commission.

Developed economies like that of South Africa, United Kingdom and Canada have each nine regions, while Nigeria, with its population of 149 million has only 36 federal states.

The fear that the system and levels of devolution was too expensive, was also dispelled, with Dr Lumumba saying “it was cheaper than what we have.”

“We’ll be eliminating county councils, some of which are too many to support themselves,” said Dr Lumumba, also the nominee to head the Kenya Anti Corruption Commission.

The issue of Kadhi courts also cropped up in the discussions with Mr Abdullahi dismissing the debate as “a non-issue.”
There was a delicate debating of the issues to do with the Executive, with Dr Lumumba saying that some of the offices proposed were cosmetic and unlikely to improve the lives of the people.

He said the “potential of conflict” between the President and the Prime Minister as proposed in the draft was “very real” and thus ought to be relooked.

The lawyers also agreed on the need to edit the draft to reduce the probability of complications that could arise when it comes to seeking a constitutional amendment.

Such amendments need a 65 percent majority in Parliament before they are effected.

Prof Muigai, a former commissioner of the pre-2005 Bomas team, said the draft was “verbose and over-written” and proposed that some of the clauses in the Bill of Rights be left to Parliament and other statutes.

Although they made their views to a group of lawyers, the LSK will now have to come up with a formal position at the end of the sessions with lawyers across the country --within the next 12 days assuming the Committee of Experts grants no extension.

According to the LSK Vice Chairman, Mr James Mwamu, a series of workshops will be held in Mombasa, Nakuru, Eldoret and Western Kenya before LSK’s position is submitted to the CoE.