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Law experts opposed to amendments on new constitution

Thursday August 12 2010

Committee of Experts on constitutional review chairman Nzamba Kitonga (centre) his vice chair Atsango Chesoni (left) and commissioner Bobby Mukangi leave shortly after addressing journalists at the commission office in Nairobi, August 12, 2010. PETERSON GITHAIGA | NATION

Committee of Experts on constitutional review chairman Nzamba Kitonga (centre) his vice chair Atsango Chesoni (left) and commissioner Bobby Mukangi leave shortly after addressing journalists at the commission office in Nairobi, August 12, 2010. PETERSON GITHAIGA | NATION 


The Committee of Experts Thursday opposed any amendments to the new constitution before it is applied and its efficacy tested.
It further gave itself a thumbs up following the passage of the new Constitution but urged Kenyans to guard the document from being mutilated.

“As Kenyans embark on the second phase of the reform process we call upon all stakeholders to be vigilant in the knowledge that those who have enjoyed the status quo and privilege under the old order will always seek to subvert and delay this long walk to reform even as we fervently seek to convert them to the fold,” CoE chairman Nzamba Kitonga, said.

CoE’s position was immediately contradicted by retired President Daniel Moi who insisted that clauses on abortion, counties and land must be amended.

“My opposition to these clauses still stands. These concerns should not be neglected or wished away for the contentious issues will continue to be a source of friction among our people deeper into the future,” the retired president said in a statement.

The retired president who vigorously campaigned for the rejection of the new constitution insisted that a new constitution must not be a contestable or divisive document but one that “earns the unanimity and respect of a cross-section of as many citizens as possible.”

Addressing the commission’s first news conference after the August 4 referendum, Mr Kitonga said his group did a “good” job a thing he attributed to team spirit and co-operation with MP Mohamed Abdikadir headed Parliamentary Select Committee on constitution.


Asked major challenges his team underwent, he said, it did not expect the Church to disown the new constitution after they had agreed and same to MPs who were in Naivasha.

Mr Kitonga who was accompanied by CoE vice-chair Atsango Chesoni and director Ekuru Aukot among others regretted that some individuals he did not name want to subvert the reform process by pushing for amendments even before the new constitution is implemented and igniting unnecessary political bickering.

“Some members of the clergy and politicians have insisted on the use of the words contentious issues. Under the constituting statute, contentious issues were identified and resolved way before the referendum by the other organs of the review process, the CoE, the PSC and Parliament. The referendum overwhelmingly endorsed those resolutions. Therefore, statutorily it is not open to any dissatisfied groups to declare newly found contentious issues,” Mr Kitonga said.

He added: “While some sections of the citizenry may have concerns relating to the new constitution those are not contentious issues within the meaning of the statute.”

He said although the right to amend new constitution is enshrined in it, it is a “weighty and grave” matter that it should take at least 10 years before any change could be done.

“It cannot happen now as the Senate is not there. We have not even formed counties. After 10 years when it is understood and has started working, there might even be no need to change anything,” Mr Kitonga said.

Amending even one clause of a Constitution impacts on the entire document leading to distortion and disharmony in its structure adding that this was why the old constitution was disfigured beyond recognition.

“We recommend for a prolonged period of patience to allow for the implementation of the new constitution so as to test its application and efficacy before any amendments are considered in future,” Mr Kitonga said.

The CoE further proposed that the government continues with civic education on new constitution as many Kenyans were not aware of its content.

It said the Ministry of Justice, National Cohesion and Constitutional Affairs should liaise with that of Education formulate a programme for constitutional education in schools and colleges.

Mr Kitonga said CoE was happy that the first phase of the journey towards a new order had ended.

“Our many months of toil, stress, vigil and hard work were worth the prize of a new Constitution. It is a constitution that in our humble view captures the aspirations and hopes of Kenyans,” the chairman said.

Mr Kitonga said the new Constitution moves Kenyans from the oppression and injustices of the past, empowers the poor, the weak and the marginalised “to move from the periphery to the centre of governance.”

“It also seeks to address the historical imbalances in the development of our regions. It aims at emboldening the public in war against corruption, tribalism and nepotism. “ The constitution is not only our shield and defender but it is a weapon against misgovernance and injustice for it empowers its citizens to sue, sue and sue until justice is found,” Mr Kitonga said.
Additional reporting by Peter Leftie