Experts reach crucial stage as curtain falls on public debate

With four days to go before the curtain falls on public debate on the draft constitution, the next step — producing a final draft — is seen as the most critical.

The Committee of Experts is expected to come up with a final draft and forward it to the Parliamentary Select Committee on the Constitution at the end of the month-long debate.

After further discussion, it will forward its final draft to the National Assembly for validation through a referendum.

It is this draft that will determine if Kenya will have a new constitution, university don Dr Kindiki Kithure says.

The don says this is because the Parliamentary Select Committee on constitution review or Parliament are unlikely to make any fundamental changes to it.

Inherent fear

“There is inherent fear that if they do that after the close of the public debate, Kenyans will reject the final document,” says Dr Kithure, an associate dean at the University of Nairobi’s school of law.

The Constitution Review Act, 2008, provides for 179 days, approximately six-and-a half months, to the referendum.

This period, however, may be extended by 28 days if the process is delayed in Parliament, allowing the Committee of Experts and Parliamentary select committee on constitutional review to break any deadlock that may arise in Parliament.

The revised harmonised draft is expected before the 27-member PSC chaired by Mandera Central MP Mohammed Abdikadir by January 8 and it will deliberate on it until January 28.

It then goes back to the committee of experts for revision until February 18.

According to a timetable provided by Justice minister Mutula Kilonzo, the PSC will then bring the draft to Parliament by February 25.

This will open up debate pending approval by the MPs for another period of 30 days. Parliament may recommend amendments which are to be considered by the PSC within seven days.

If Parliament feels that there are pending contentious issues after the second submission, they will refer the draft back to the experts.

Seven days

A meeting of the experts, the PSC and the Reference Group will then be convened to iron out these within seven days.

When the draft is tabled in Parliament for a third time, MPs are required by law to approve it and send it to the AG for publication, which he will do within 30 days.

The Interim Independent Electoral Commission, in the meantime, is required to announce the date of the referendum which will come within 60 days of publication.

If it is voted for and passes, the Attorney General will again publish it and the President will promulgate it into law.

Dr Kithure’s argument is based on the fact that Kenya has a history of how citizens relate with institutions of governance.

For instance, when Attorney General Amos Wako persuaded the government to drastically change the Bomas draft to the Kilifi draft, which was later updated to the Wako draft, it was rejected at the referendum.

“This means that the CoE needs to undertake certain fundamental things that are already under public debate and others that may not have come out but which, if not addressed, would be used by anti-reformers to frustrate the quest for a new constitution,” he says.

Listen to experts

The CoE should not expect the issues to exhaustively come out within the 30 days of debate, says Dr Kithure, adding that it is very important for the committee to listen to experts, assess the mood and dig out positions that have not been articulated.

“I have not seen the CoE engaging the public and other stakeholders for that is part of the debate. The committee should actually initiate debate and ensure that people likely to have an influence on the debate speak early enough to be held accountable,” says the university don.