The road we’ve travelled in search of law reform
Now look at us. Look what we have done. We never seem to know what we want, do we? We have gone round and round for a good 18 years like dogs chasing their tails and stopped exactly where we began in 1992. Come with me to 1992.
At that time it was Mr Paul Muite who argued time and again, and often to unconcerned and undiscerning political colleagues, that what Kenya needed urgently was a new constitution and not a mad rush into a General Election.
Muite, then a hard driving and even harder charging human rights lawyer and political activist, argued that having come from a single party dictatorship we needed a new constitution in order for us to complete the so-called second liberation.
Muite was in the minority. Mr Kenneth Matiba, he of the Moi-Must-Go mantra, and even Mr Mwai Kibaki, yes, the now President of the Republic, and the father of opposition politics, Jaramogi Oginga Odinga, wanted elections yesterday.
Muite told me in those heady days that the country needed a new constitution in order to make a clean break with the past, clean and style up politically, right legal and rights matters, deal with impunity and, therefore, face the future refreshed, re-energised and replenished.
Matiba, Kibaki & Co advanced the view that ridding themselves and the political arena of Moi & Co was the priority. The constitution thing could be sorted out once they were in State House. Muite was right; they were dead wrong and wrong-headed.
Good old Uncle Dan, battered and buffeted from all sides, first went into a panic before rallying the troops, raising the money and ethnic tensions before unleashing a certain Cyrus Jirongo to beat the opposition in the chaotic and euphoric 1992 General Election.
Out-foxed, out-flanked and outwitted by Uncle Dan, Matiba, Kibaki, Jaramogi & Co now realised we needed a new constitution but they found it hard to rally as Uncle Dan ran them ragged with the sole aim of running them to the ground and into irrelevance. Back to square one.
Uncle Dan argued again and again and time without number that we did not need a new constitution because the one in place – to this day – had served us well. In political terms, albeit with a selfish interest, Moi was right. This basic law has been with us to this day!
At the time, Uncle Dan argued passionately that constitution making was the business of Members of Parliament. Leading, Uncle Dan pontificated and lectured, was the business of MPs. In refusing to lead the business of constitution-making, Moi chided, MPs were abdicating their roles.
No, we shot back. Wanjiku must make the constitution because we want an all-inclusive constitution. Uncle Dan stayed put until he retired from office – not politics – in 2002. Suddenly we were all agog, even gaga, and pregnant with expectation of a new constitution in 100 days!
But it was soon evident that Kibaki, now President, was in a hurry to promise and lethargic about delivering a new constitution. Having reneged on the Memorandum of Understanding with Mr Raila Odinga & Co that gave him State House, he could now slow down on reducing the powers of the presidency he advocated in 2000.
The President did not have to say it; he has lieutenants to do that. So Mr John Michuki kindly informed us that we wanted a share in the power of the executive and now that one of us was holding -- and even wielding -- that power, there was no need for the office of prime minister.
Oops! Little wonder then that the much hyped Bomas constitution-making process was scuttled by, among others, ministers such as Kiraitu Murungi who, as opposition MPs, had led the clamour for a new constitution! Back to square one. No, the process was not dead in the water. A small group and not the large assembly that was Bomas, retreated to the Coast and so we had the Kilifi Draft after the Bomas Draft and then followed Wako Draft which we were called to vote on in November 2005.
It was regarded as a Kibaki Draft, an anti-people draft, brought in to kill the people’s draft that was Bomas. It was resoundingly defeated and where the Orange – No Vote – carried the day and hoped for change in the political arena, the Banana – Yes Vote – lost and remained firmly in charge. Back to square one.
So in came the Committee of Experts on Constitutional Review (CoE). They knew we did not want a powerful presidency because we had said so throughout the last two decades. They proposed -- towards the end of last year -- a hybrid system where president and premier share power.
We were stunned and staggered back to reality. No, we want one centre of power, please give us one centre of power, we told the CoE. The CoE stuck to its guns and handed over its report to the Parliamentary Select Committee (PSC) on the Constitution (PSC).
The MPs tore to smithereens the CoE report and have given us a monstrously powerful president. This is a constitution written by MPs, the referendum campaign will be fronted by MPs and the final document passed by MPs. Did we need CoE? Do we need a new constitution? Back to Uncle Dan – it is the business of MPs to make the constitution.
Kwendo Opanga is the Editorial Director, “Best of Kenya” and “Diplomat East Africa” magazines. [email protected]
