Nothing should be allowed to derail the new constitution

FOR THOSE OF US WHO HAVE demanded that the constitution-making process be people-driven, the affirmation during its launch by Committee of Experts chairman Nzamba Kitonga that the Harmonised Draft Constitution is not cast in stone, but is a working document to be improved upon using input from the general Kenyan public was most welcome.

A referendum at the end of the process cannot replace the need, at this stage, to seek and take on board the views and sentiments of Kenyans regarding an issue of such national importance.

Though the next 30 days period is short for this kind of exercise, a lot of good can still be achieved. We must seize the opportunity to collaborate for the good of the country.

It is Kenya’s time to eat and we must feed it. We must waste no resources combating each other. We must debate the document in sober and progressive ways, always going out of the way to seek the best for the country.

HISTORY HAS PUT US IN THE UNIQUE position to midwife the birth of a modern democratic and prosperous society from the ashes of the current one.

A good constitution is about harmonising our mutual existence, not the complete satisfaction of one individual or group over others. We must be ready to sacrifice for the common good.

Nevertheless, although I don’t feel the platitudes of the launch microphone were merely meant to please a gullible nation, clumsy quick-fix compromises that don’t answer fundamental problems in the otherwise excellent draft portend danger.

For example, the committee did not bring in any new thinking and sacrificed the principle on the altar of retrogressive political expediency when tackling the two key contentious issues that destroyed the Bomas process, namely, the structure of the Executive and devolution.

In an ill-advised attempt to arrange a compromise between PNU and ODM, the committee has chosen to dance on the treacherously slippery slope of sharing executive power between an executive president and executive prime minister.

The committee’s deliberately incoherent but clearly unworkable hybrid system is reminiscent of the power-sharing arrangement that disastrously failed to work in the Congo between Prime Minister Patrice Lumumba and State president Joseph Kasavubu.

In Uganda a similar power-sharing arrangement between Prime Minister Milton Obote and President/Kabaka Edward Mutesa II failed tragically when the two tussled over executive power.

History proves that whenever executive power is shared as proposed in the draft, destructive power struggles inevitably and quickly develop between the prime minister and president.

The fact that the eight provinces are to be left intact as devolution units is a major indictment of the committee. Whoever drew the clearly and unacceptably biased provincial administration map did not have the common good of Kenyans at heart.

For example, why is tiny Central not part of Eastern; and why are the even tinier Nyanza and Western not one province or part of the massive Rift Valley?

Clearly, Kenya’s administrative boundaries were drawn to “imprison” the populous Kikuyu, Luhya and Luo, and they divide and antagonise people along tribal lines. Hence, it is foolhardy and suicidal to devolve into these units.

At the very least such devolution will sow seeds of future discord and instability since they will not improve cohesion but just deepen the tribal divide.

The committee should have drawn on the sobering lessons of the 2005 referendum, and 2007/8 post-election violence to professionally trump the parochial politics of the moment by coming up with rationalised regions that make political sense by integrating ethnic communities and are also economically viable.

FOR EXAMPLE, AS SHOWN IN THE map, some governance experts have suggested that Kenya should be subdivided equally into five new devolved regions after the eight provinces are abolished. Being the basis of aggregating power, the people, not the State, should be sovereign under the new constitution.

Therefore, the new constitution must guarantee people-driven governance as a further constitutional check on the government. In other words, we must have a robust Bill of Rights and an independent and effective Judiciary to enforce them.

Finally, contentious issues will be no more than minor speed bumps on the road to the new constitution if, instead of incoherently dancing around obstacles, the committee creatively uses the people to trump them.

Hence, referendum questions must allow Kenyans to simultaneously vote on and decide each contentious issue, such as the system of governance, as they ratify the Final Draft Constitution.

Mr Okoiti is a human rights activist.