We are committed to amending the contentious issues, pledges Raila

Friday August 6 2010

William Oeri  | NATION Prime Minister Odinga at his home in Karen, Nairobi on Friday where he pledged that amendments to the Constitution would still be done.

William Oeri | NATION Prime Minister Odinga at his home in Karen, Nairobi on Friday where he pledged that amendments to the Constitution would still be done.  

By MACHARIA GAITHO

A day after the after the ‘Yes’ campaign was declared the winner in the referendum on a new constitution, PRIME MINISTER RAILA ODINGA met Nation Managing Editor for Special Projects MACHARIA GAITHO at his Karen residence.

Relaxed and jovial, Mr Odinga used the period before the formal interview to talk candidly about the period leading up to the head operation that sidelined him from the campaign trail.

He described how he had earlier ignored what he thought was a minor bump on the head. He hit his head on a car door and later when headaches became persistent, he saw a doctor who initially diagnosed malaria.

When the malaria medication failed to halt the headaches, a second opinion suggested a sinus problem. Still the treatment did not work and he begun relying on a regular dose of panadol, an off-the counter pain-killer.

Finally the doctor, an Ear- Nose-and-Throat (ENT) specialist, ordered a scan, which revealed that there was no sinus problem, but a ‘shadow’ higher up in the head. That was when they called in a neurosurgeon who conducted a fresh series of tests that revealed acute subdural hematoma, bleeding around the brain that if left unattended can be very serious.

Immediate surgery was called for, with Mr Odinga recalling that the doctors expressed surprise he was still on his feet after the long period in which the problem was unattended. Blood clots had developed leading to pressure on the brain.

“It was like releasing the valve on a pressure cooker”, Mr Odinga recalls of the surgery that involves drilling hole in the skill to release the pressure, and another one to drain the fluid-build up.

He has since been going for a scan every week and says the doctors report excellent progress.

The interview itself focused on the post-referendum scenario: Excerpts 

During the campaigns both you and the President committed yourselves to addressing the contentious issues raised by the ‘No’ team after the new Constitution won the day. Have you now given thought to the mechanism under which those issues can be revisited?

We will be discussing. But as you know we now have a new Constitution, and that Constitution outlines clearly how such issues can be raised and how it can be amended. We hope that the people who want amendments know that.

We agreed that we cooperate and that position has not changed. But as you know, when we went to parliament there were so many amendments proposed by MPs that nothing could move.

If you want to go down memory lane to 2005, there were just three contentious issues, the legislature, the executive and devolution.

Land was not an issue. Kadhi's court was not an issue. Abortion was not an issue. After we had agreed on the key things new contentious issues were raised. We are agreed to talks, but how can we be sure that new contentious issues will not be created? Nevertheless, we are willing to listen and resolve issues under the context of the new Constitution.

Whether contentious issues are new or old they are still issues that came to the fore. Have you thought through specifically which of those issues were not genuine, and those worth consideration and the best way they can be resolved to the satisfaction of both sides?

For instance Kadhi courts were a non issue. If you remove it the Muslims will be not be happy. There is really no compromise on the issue of the Kadhi courts, they have always been there under the Constitution and never hurt anybody. In any way, compromise on the issue had been reached in 2005 at Bomas of Kenya with the churches, with the very same church leaders who raised objections later.

Abortion?

You know this is an issue that did not come from the Committee of Experts. Abortion was introduced in Naivasha by the Church leaders.

They introduced it because they wanted it stated that life begins at conception and that abortion in not permitted, period. But then medical practitioners pointed out that if it was left that way, as professionals they would have a problem. They risked being charged with murder if in an emergency they terminated a pregnancy to save the life of the mother.

That’s why other qualification had to be introduced, allowing the procedure if the life or health of the mother was in danger. Then there is also the Penal Code, and that is what informed the Committee of Experts decision to add the proviso 'permitted by any other law'.

Existing law?

Law which is already there. We were not drawing a new Constitution in a vacuum, and agreement had not been reached to repeal the existing laws. Now that we have a new Constitution we can look at some of those issues by considering the existing laws and deciding whether they need to be changed. In any case, any laws that are conflict with the Constitution will be rendered null and void.

The one issue that really worried the Rift Valley politicians was land. Do you see any room for engaging them on that?

You know this land issue was raised generally to instill fear in the peasants that their land was going to be taken away. If you look at the way they started it, it was full of distortions and misinformation that really had no basis.

Nowhere in the Constitution does it say that the government was going to take over private land from individuals. It was mostly about protecting public land and about Parliament enacting new land laws. We have various categories of land: private, public and communal land, and all must be protected.

For private land it was generally about rationalising leasehold status so that you don't have 999 year leases for some and 99 year leases for others. But note that the proposed law has not been enacted by Parliament, so these people were objecting to something that did not exist.

It would have been better to wait and then debate the land law when it comes up. The process of introducing legislation all the way from Cabinet memo to circulation of a draft Bill by the A-G and eventual tabling of the Bill in Parliament all gives the public the opportunity to express their views.

Why would somebody pre-suppose that Parliament is going to pass a law that is anti-people? That was just a way of hyping up the people against the proposed constitution. I don’t see any material substance in their objections on the land chapter.

Land was discussed extensively at Bomas, and at the end all agreed. The delegates were from all over Kenya and Rift Valley was strongly represented. It was not the substance but the politics that informed these late objections.

All the same we can see from the voting patterns a certain mood in a section of the Rift Valley, may be even anger and resentment. Does that worry you against the recent history of land and ethnic violence in that part of the country?

I think this new Constitution gives us the best platform to confront this issue of land that has been at the centre of conflicts in the Rift Valley. There are some fears that are real, others that are unfounded.

Take the issue of the Mau Forest. It was used to poison the minds of the people in the Rift Valley  … it was politics to try to put a wedge between me and the people, that I was trying to evict the people that have settled in the Mau without due regard to their rights and comforts.

But you see what we are trying to do in the Mau is in the interests of the people themselves, the people in the region and in the country generally.

Unless the issue of Mau is resolved it will be a big danger to the community. We were doing it in a very systematic and humane way, but politics intervened to incite the people. That has something to do with the way the people voted not just in South Rift, but also in other parts of the Rift Valley. To some extent we can say that they succeeded in mobilisng their people against the new Constitution.

That obviously has an impact on ODM losing a key constituency. Do you see William Ruto remaining in the Cabinet and in ODM?

We said we want to move forward in this country, we don’t want to live in the past. We want to talk about what’s good for the people of Kenya; we don’t need to dwell on individuals. William Ruto has got his own conscience and can make up his own mind on whether he wants to come together with the people of Kenya or whether he wants to move in his own direction.

So it’s up to him to decide whether he wants to stay and you are not going to kick him out?

We don’t want to talk about kicking people out when we have much more important affairs to concern us in operationalising this Constitution.

It has to be signed and then we must begin to put structures in place to anchor it. Ruto is a member of ODM and we are not in the culture of expelling members. ODM is a democratic party that tolerates differences of opinion. So we really don’t need to waste time thinking about individuals.  

It has become notable, particularly during the campaigns, that you and President Kibaki have struck a rapport and that the old tensions of the early period of the Grand Coalition have dissipated. The ODM and PNU wings also worked well together. What was the pivotal moment or issue behind the new amity?

You see, running a coalition is not an easy thing, particularly a Grand Coalition like this one of equals. In an ordinary coalition it is clear that there is a senior and a junior partner.

Then, this coalition was formed against a background of conflict and there were tensions, fears and suspicions. These are the problems that we had to confront. Early on there was haggling about portfolios, appointments and so on where some party may have felt short-changed.

Then for each side there were lots of pressures from various groups of supporters over positions in the civil service, diplomatic postings, even the Cabinet.

So, unless there are consultations constantly, there will be lots of problems; there will be polarilised relationships between the parties. We discovered that whenever we were apart and we were not talking and sharing information, tensions crept in. The media would pick them up and begin to play us against each other. There were issues of ego.

We found out along the way that when we meet and discuss issues these pressures and tensions dissipate. We are consulting much more regularly. This is what has brought us where we are now.  For the last several months we have had very smooth relationships.

We have agreed that we want to focus on issues that are for the good of the country, particularly now when we have a very crucial task with just two years remaining to anchor the new Constitution. I’m satisfied with the relationship that exists between me and the President.

Anchoring this Constitution will not be easy. There’s a tremendous amount of legislation to get through parliament and institutions to be established. Do you fear any major roadblocks, particularly from the political rifts that came with the referendum campaigns or the lack of resources and manpower?

This will be a massive exercise. I would draw a parallel with South Africa after the end of apartheid. We require complete cooperation from all in the country.

Parliament has got a critical role to play in introducing several legislations and creating institutions. Take, for example, devolution. Most people do not appreciate what is involved. Provinces are disappearing and so what is called the Provincial Administration cannot remain in its present form, it must be restructured.

Counties become the basic unit of devolved government, and under them there will be the levels of local authorities that remain, they are not being dissolved as some fear. It’s going to come up clearly in the draft Bills to be discussed by parliament.

There are lots of reforms to be undertaken in the judiciary. Even Parliament itself must change with establishment of the Senate, and relationships between these institutions must be described by legislation.

We have a road map and we are discussing how to proceed. After the signing of the Constitution into effect, then all this work must start. We need to get Parliament in the mood in which it can be able to discharge this historic duty bestowed on it by the people. ODM and PNU must fortify this working relationship so we deliver as one group.

There were the political undertones during the referendum campaign when some groups worked against each other because they saw it as a dress-rehearsal for 2012. Might that mode come up once again to sabotage actualisation of the new Constitution?

It’s very unfortunate that these things sometime have to come up. I would blame the media for creating these …

We only report what you politicians are doing…

But you can see today that some newspaper are busy creating “Winners and Losers” and they go on to talk about 2012. There were no winners and losers from the referendum and it was not about 2012. The media is not happy if there’s no fighting. Those things are not helpful. If we go that route we’ll not be able to anchor this Constitution, people will be pre-occupied with 2012 and we are only two years away.

Many were surprised by the vigor with which President Kibaki campaigned for the new Constitution. What’s your take on what drove him? Anything more than the need to rescue a legacy before he bows out?

It was out of his own conviction. He was aware from the beginning that some groups did not agree with certain provisions of the draft. He wanted to bring everyone on board and that’s why he may have seemed initially hesitant. But he read it fully and confided in me that he thought it was a good Constitution, save for some terminologies here and there. But then there were these forces that were arrayed against it, like the church, and part of the country.

Maybe, in my view, he thought it might be a futile exercise. He certainly did not want a repeat of 2005 because he knew if it failed there would be no other opportunity to bring a new Constitution.

Once he was convinced it was possible to sell it to the people, then he came out very strongly. He made it clear that we can negotiate, but there were certain things on which there could be no compromise.

He wanted to carry everybody on board, but he could see some of the objectors had ulterior motives so there was nothing to compromise with them. He determined that if there were to be any amendments they can be addressed after passage instead of holding back the exercise. We tried to convince the church leaders but they were not willing.

We were sharing work all the time. The last function I did, we were supposed to go together to Bungoma. But then something came and he had to go for a function in Embu. So we talked and agreed that we split, I go to Bungoma and Kakamega, and he goes to Embu.

We also agreed that when we come back, we have a meeting with our joint Parliamentary Group to lay out campaign strategies. That was the last function we did at KICC to lay out a strategy for deploying our forces countrywide.

We were going on pretty well and then I was taken ill he had to come to the front and he said "we are not going to fail". He did a great job and I’m very proud of him. This is his legacy and he means it from his heart.