Draft Law: How ‘miracle’ deal was struck

Committee of Experts chairman Nzamba Kitonga (left) receives the Naivasha draft from PSC chairman Mohammed Abdikadir and deputy chairman Ababu Namwaba in Nairobi on Friday. Photo/CHARLES KIMANI

Members of the select team that delivered what is possibly Kenya’s first unifying constitution draft on Friday spoke of the “magic formula” used to reach agreement on the difficult political issues.

In separate interviews with the Saturday Nation during and after the talks, the MPs revealed how lessons learnt from the tragic events that followed the last General Election pushed members to a deal in talks at a resort in Naivasha.

Strike consensus

The MPs sitting in the Parliamentary Select Committee (PSC) to revise the harmonised draft constitution, revealed how they navigated around party and ethnic considerations to strike consensus on virtually all the contentious clauses, a goal that had eluded the two grand coalition partners for months on end and the government before it.

A group of moderate MPs played a critical role during the 11-day talks at the Great Rift Valley Lodge by stepping in between the sometimes hard-line positions held by a section of ODM and PNU ministers.

The role played by the chair in moderating the debate, especially in the company of known arbiters like Deputy Prime Minister Musalia Mudavadi, Cabinet minister Dr Sally Kosgei and Mwingi South MP David Musila, also went a long way in softening positions during debate on emotive issues of devolution, the Executive and representation, PSC members who spoke to Saturday Nation said.

Straight-shooting MPs like Chepalungu’s Isaac Ruto and assistant minister Peter Munya, plus nominated MP Amina Abdalla, Garsen’s Danson Mungatana and Gichugu’s Martha Karua, also stood out to ensure that the deal had the aspirations of the people, sources said.

Cabinet ministers Charity Ngilu, Moses Wetang’ula and Mutula Kilonzo said they had all along believed that the PSC would not fail Kenyans this time round. The onus now is with the Committee of Experts chaired by lawyer Nzamba Kitonga to incorporate the PSC decisions into the draft in readiness for debate in Parliament from February 25.

During the handing-over ceremony in Nairobi on Friday, Mr Kitonga indicated that his team would revise the draft which the PSC “had no option but to own fully”. “Once we have revised the draft, you must be able to own and defend it since you have come up with the decisions,” he told the PSC.

He noted that the country did not expect the 26 politicians to agree and hoped that they would be able to get their colleagues in Parliament to support the document. PSC chairman Mohammed Abdikadir said that the “entire political class supports the proposed changes to the draft”. He also noted that the PSC, while in Naivasha, realised that at the end of the retreat they would “either win or lose” by whatever decisions they would make.

On Friday, an overjoyed Mrs Ngilu told the Saturday Nation how the deal “was all about the bigger picture.” “If we failed, the people would take over like they did in early 2008,” she said. “The time had come for us to stop thinking about ourselves and give Kenyans what they’ve been yearning for.

“All these years, the leadership has been too selfish and we were not going to allow that to blind our debate.” Ms Ngilu, a senior member of the ODM party, attended the talks in the company of colleagues Musalia Mudavadi, Najib Balala and William Ruto.

Ms Ngilu revealed how at one point the two coalition partners had to engage in horse-trading in order to achieve consensus. Under the arrangement, ODM acceded to PNU’s demand for a presidential system of governance to win support for its system of devolution to be entrenched in the revised draft. “It was a give-and-take as ODM finally managed to have devolution of power entrenched in the constitution,” she said.

According to PSC vice chair, Mr Ababu Namwamba, the secret was in the lawmakers’ resolve to break “the historical jinx.” “We refused to be divided along ethnic, religion and political party lines, and so we were able to build consensus,” he said moments after the PSC unveiled their deal to Kenyans.

“Everybody is exhausted about going round and round in circles, and we are sure that this is a good deal,” he said in a TV interview from Naivasha on Friday night. He said the PSC did not expect the Committee of Experts to “interfere” with the “very good political settlement” that the MPs had struck during the retreat.

But other than formally ceding ground for each other at the plenary, the MPs also held informal consultations depending on the interest at hand. At one point, the MPs would walk out of the conference room and huddle in groups along party lines.

And when it came to discussions on representation, it was the turn for the women to consult and lobby their male counterparts, who were against the provision of reserving non-elective seats for women. ODM and PNU also had teams of technocrats who were handling the technical matters on their behalf.

The MPs would be seen often consulting their technical teams during breaks and also on phone. ODM had Prime Minister Raila Odinga’s adviser on coalition matters Mr Miguna Miguna, the PM’s principal administrative officer, Mr Caroli Omondi, and lawyer Mutakha Kangu.

The PNU strategists spotted in Naivasha included spokesperson Moses Kuria, leading academician Prof Peter Kagwanja who is based in Pretoria, former MP Dr Jimmy Angwenyi, city lawyers Dr Stephen Njiru, Amos Makokha and John Katiku, presidential advisor on coalition matters Prof Kivutha Kibwana and Kanu organising secretary and former Siakago MP Justin Muturi.

Guiding principle

On Friday, North Horr MP Chachu Ganya said the PSC’s “guiding principle” was the growing public fatigue in the push for a new law. “We almost lost this country in early 2008 because the current Constitution is inadequate…we had to do things differently,” a relieved Mr Ganya said.

Mr Ganya said the compromise deal out of Naivasha was “best deal for everyone.” “I can’t say it was the best compromise for me, but my situation was catered for,” he said. “Democracy is all about numbers so at any given time population has to be given more weight.”

Mr Ganya said the team had “negotiated” with the principals before the Naivasha retreat and thus the compromise had the political backing it required for it to sail through the referendum. Mr Wetang’ula told the Saturday Nation that the meetings were cordial because the “political temperature” at the moment was not as “hot” as it was in 2004 when the PSC met in Naivasha’s Sopa lodge.

“This time round, the MPs are able to agree with each other… even when they have different points of view, they are able to listen and see where their colleagues are coming from,” said Mr Wetang’ula. He said the 2004 committee, in which he served, was “politically volatile” as the MPs were pulling in different directions to satisfy their party interests.

Wonderful

ODM Nominated MP Sofia Abdi Noor lauded the just concluded discussion as “wonderful.” Ms Sofia was a delegate for the civil society in the Bomas Delegates Conference.

Another PSC member, nominated MP Amina Abdalla, attributed the success at Naivasha to the fact that members of the technical committees that had worked with ministers from ODM and PNU in their failed attempt to strike consensus on the contentious chapters of executive and devolution were kept out of the deliberations. “We succeeded because we managed to keep the disruptive elements, the so-called technical teams out of the meeting,” she said.

Reported by Alphonce Shiundu, Oliver Mathenge and Peter Leftie