The face behind the highs and lows of historic draft

Relief was evident on the faces of the majority of MPs when the “Ayes” drowned out the few “Nays” to pass the draft constitution on Thursday evening. Among them was a young well-read lawyer serving his first term as MP for Mandera Central, who felt a mixture of gratitude and happiness. After all, it is he who moved the motion to adopt the draft from the Committee of Experts on the Review of the Constitution on March 2, and he had just witnessed a historic moment in Kenya’s search for a new set of laws. The chairman of the Parliamentary Select Committee on the Review of the Constitution says in this interview that “it has been a wonderful struggle”. He was interviewed by JOHN NGIRACHU.

What happens, now that the draft constitution has been passed by Parliament?

The draft goes to the attorney- general for publishing. Thereafter it goes to the people through a referendum. The question will be framed by the Interim Independent Electoral Commission (IIEC). The people decide through a vote, hopefully a ‘Yes’ vote, and 14 days after the results are announced or before that the President puts his hand to it, and it comes into effect.

That gives you the number of the sections to immediately come into force. A number of them are staggered for good management and to save these institutions, such as the National Assembly and the Executive. From the schedule, there is a whole load of legislation to be undertaken to bring into force the new constitution. You need to prepare the ground for this constitution and that’s why there is a whole chapter on transition, to move from the current to the new constitution.

What are your hopes for a majority backing?

I sincerely believe this is a very good document. I have no doubt that it can be improved. This is the product of human endeavour and enterprise and has our prejudices, our mistakes … there is no doubt that it can be improved, but so can any document in the world that is constitutional. With any document in the world, if you gave it to an average lawyer and asked “How can this be improved?” they’d suggest changes.

The proposals to amend the document are solid but we have a solid document to start with, far much better than the current Constitution. As I said yesterday (Thursday), 70 per cent of the proposed amendments were on two parts of the Constitution, the Bill of Rights and devolution.

There is no devolution in the current one, so even a single addition on devolution is an improvement. The Bill of Rights in the current Constitution did not even exist.
If you were to look at devolution and the Bill of Rights in the current Constitution, there is a vast improvement. The Bill of Rights is one of the most modern in the world. It is the largest chapter in the proposed constitution and it’s very modern and progressive.

How does this constitution compare to what we voted against in 2005?

This document builds on the 2005 document and improves it. That document failed because of not being very clear on the system of government. If you remember, we had a hybrid system where we had a Prime Minister who was seen as very weak, while the forces were either for parliamentary or presidential. At that time, the ‘No’ vote was for a clear parliamentary system.

We now have a chief executive who gets a clear mandate, then he or she has to live with the other institutions set up to check those powers and that has been the problem before, not that the president had been too powerful but that there were no institutions to check those powers or had taken away all other powers from those supposed to check him. There is no doubt it has been a vast improvement from the Wako draft but it builds on it. It is really a completion of the process.

The law that set this process up says look at what has been said before, see what has been agreed on, close those issues, see what the contentious issues are and work on them. The contentious issues were devolution, transitional provisions and form of government.

We have agreed on forms of government — a pure presidential system. In devolution, there was the question of whether to go for a two-tier or three-tier. There is no doubt we are going for devolution and there were a number of transitional clauses suggested on the accord. That had been tackled by the PSC and the view was that let’s save the accord for the life of this Parliament.

One of the key institutions is an implementation committee akin to a commission to see this constitution will be implemented.

Do you think MPs will support the document?

Yes. I know a majority of MPs will support it. I am sure there are a number of MPs just like there are a number of people who might have issues with the document but I am sure the majority of Kenyans and MPs want to conclude this process.

There were a number of amendments proposed but the nature of this is that at that stage of the process we were not allowed to re-open everything.

As the document was going towards the finish, it was becoming more difficult to change anything and the bar was very high for that to happen, and with good reason, to get to conclusion on this process.

I know that all these reforms we have been undertaking, in one go, we’ll have reformed all the institutions in this country. Parliament will have a say on the Budget, unlike before, and play its function. Your elected representatives can now have a say on taxation and expenditure. Before now, there was very little to pass. Now we have a neutral commission to advise Parliament.

Sending at least 15 per cent of revenue to the devolved units will also have an effect. At 2.5 per cent, CDF has done wonders. It has its own shortcomings but there is no doubt that that is the most useful percentage of the Budget. People see, decide and determine where it goes.

A lot of Kenyans did not know you before this process started and having led this process, what are your personal ambitions now?

Yes, your paper called me a little-known MP. I hope this document passes so that we can cross that bridge. This country needs a rebirth, to cross this and move to the next level. And we have all the ingredients to move forward. What I saw during the interviews to set up the commissions was wonderful.

I wondered over the wealth of human resource in this country. We have a reasonably modern economy, a very hardworking and educated labour force, young people who have talent. We have no reason in the world to be where we are. This constitution gives us a legal framework to move ahead.

Will Mohammed Abdikadir become bigger in stature?

I don’t know. If you had asked me a year before the elections whether I would have been in politics, I would have said no. April 2007 is when I decided to try, after discussions with my friends.

One of the advantages (of being an MP) is that you can have a big impact at policy level. The game might not be very nice, some politicians are not very popular, but truly, you can do a few good things and if this is done, I’ll be very grateful to have been part of this process.

What were your best moments, and most frustrating?

Surprisingly, it’s been fairly smooth considering how this process was the number of other times we have tried. I have been fortunate to get the goodwill, or at least the benefit of doubt from the majority of my colleagues. There are a number of people who have gone through this process and they offered advice at several points.

Naivasha was very good but it was also the toughest period for the PSC because all these issues that came out in the National Assembly (on Wednesday and Thursday) also came out there, but in a much bigger way there. There were times when, because the interests were very divergent, it was very difficult to bridge the gap on those issues but, ultimately, we managed.

How did you keep your head? How did you manage to stay neutral?

The reason I was a candidate for the PSC was I was generally acceptable. I was fresh and didn’t have baggage. By the time we were going to Naivasha, we had worked for a year setting up these institutions, had our hiccups with the first proposed chairman of the IIEC and all that.
We had developed a good working relationship as a committee and PSC has the best people you can think of. It has more lawyers than the CoE, more senior lawyers, and a wonderful mix of people, who have worked in civil society and government. They were all very kind to me and the vice chair and the rules of Parliament made sure we worked with a set programme.

It was easier to work with and what we did at KIA (Kenya Institute of Administration) was to try and make a replica of the PSC level but we couldn’t agree because it was hard to bring the large numbers to agree. On the other hand, the majority were not for that idea, it was not supposed to move forward. If you were to change this document, it had to be because a very large number of members supported that change.

Why did the MPs keep walking out?
The members knew that for you to move that amendment, you needed that minimum threshold, so they were voting with their feet. It might not be a very elegant way of doing things but it’s a very effective way. But there’s nothing illegal or unfair about it. It’s just that instead of voting, it’s just a matter of walking away so you cannot raise the threshold.

The fact that you are moving an amendment doesn’t mean you are making the document better, you might actually make it worse. Sometimes it’s about my judgment versus yours.

The most emotive issue right now is devolution and it speaks of the fears we have as a country, the fears of marginalisation, of those who feel that if this becomes a jimbo, I will be excluded, that the centre will lock me out, so I need my own.

They also speak of a lack of good leadership and Kenyans should not fear each other at this point. It speaks of our failure to reconcile, of the failure in reconciliation and cohesion. That is a major outstanding job for those of us in leadership so that Kenyans don’t have to seek refuge in the constitution from other Kenyans … that I want to have a jimbo because I feel I’ll be excluded from the centre.

More than a problem of the constitution, it’s a fear we have to deal with as a country, and I hope we can use the next two years to do that after this constitution passes, so that you know you have a right as a majority and the minority has to be protected.

How did you feel last night, when the constitution was passed?

Gratitude, a lot of gratitude. I was relieved, I was happy and I was gratified that we have passed this document for Kenya. I was gratified that our colleagues had given us the opportunity — myself, the vice-chair and the PSC — to husband the process and take the steps that we have set up the institutions and have them working.

One of the mistakes we made earlier was to create the impression that this was a government process, so this time it was moved to the National Assembly.

Did you sit up at night and think of the constitution, of the process, during the last two years?

Literally, every week, there was something to be done for the process. We probably have sat more than any other committee of Parliament, we are also the largest and specialised in that there are more members of the Executive and the backbench on the committee. Literally, every week, or every two weeks, something had to be done. It has been a wonderful struggle.