Experts’ long road to draft constitution - Daily Nation

Experts’ long road to draft constitution

Friday April 9 2010

The Committee of Experts during a boardroom meeting in Nairobi on Thursday. They include (from left) Dr Chaloka Beyani, Prof Christina Murray, Veronica Nduva (deputy director, civic education), Mr Nzamba Kitonga, Otiende Amollo and Atsango Chesoni. The committee put in long hours to beat the deadline for writing the draft constitution. Photos/WILLIAM OERI

The Committee of Experts during a boardroom meeting in Nairobi on Thursday. They include (from left) Dr Chaloka Beyani, Prof Christina Murray, Veronica Nduva (deputy director, civic education), Mr Nzamba Kitonga, Otiende Amollo and Atsango Chesoni. The committee put in long hours to beat the deadline for writing the draft constitution. Photos/WILLIAM OERI 


They once worked for 23 hours, non-stop, going through a huge pile of documents with a deadline looming and the threat of a court case that could easily have laid to waste all their effort.

The country needed a draft constitution, and the Committee of Experts on constitutional review had a strict timetable within which to work.

They were never in harmony, oftentimes engaging in emotional exchanges and taking a vote on particularly difficult sections. This was expected as they came from diverse backgrounds.

Their personal and social lives suffered due to their heavy workload.

But through it all, the CoE produced a harmonised draft constitution that elicited much less opposition than any previous attempts at making a constitution for the country.

Teething problems

Their point of reference was the Bomas, Wako and Kilifi drafts, and the people of Kenya, but the work involved back-breaking man hours.

They had to make a big sacrifice for the country to get a constitution it so craved.

The draft was agreed upon as a result of consensus after all the disagreements, and even the threat of a walk-out, were resolved.

According to Njoki Ndung’u, a member of the CoE, the most difficult challenge to overcome was the experts’ varied background and way of thinking.
At one time, Ms Ndung’u herself walked out, citing lack of consultation before key decisions were taken.

“Given my nearly two decades involvement in constitution-related matters, and having been in Parliament, I saw things differently. I was alive to the danger of coming up with an harmonised draft without thorough consultations with stakeholders, it is on that basis that I protested,” Ms Ndung’u said.

The matter was later resolved and she rejoined the team. Commission chairman Nzamba Kitonga says Ms Ndung’u’s protest formed part of their teething problems.

“We talked to her and allayed her fears and she came back to the fold,” said Mr Kitonga.

Committee deputy chairperson Atsango Chesoni attributes it all to personal sacrifice. She remembers the many long nights of trying to fine-tune the draft ahead of its presentation to the Parliamentary Select Committee.

“We wanted to be sure that the document we were giving out was flawless. So we had to go through the chapters, sections and subsections with a very keen eye,” said Ms Chesoni.

“I have not seen my mother for over two months now. It is regrettable, but it makes me feel great to have been doing noble work for my motherland.”

Dr Ekuru Aukot, a director of the CoE, also remembers the long nights, including when they had to stretch their sitting up to 3am to beat their deadline.

“I remember, for instance, when we were supposed to give our draft to the PSC. We had to work until the wee hours, then hand in the draft for publishing,” said Dr Aukot. “The following day, at 10am, we handed it over to PSC, which meant we did not get time to sleep. By the afternoon of that day, I looked like a zombie.”

The commissioners’ families suffered as a result of the long hours, says Abdirashid Abdullahi. “I cannot remember how many times I got home late,” says Mr Abdullahi. “I was forced to be away from my family, which is partly in Nairobi and Garissa.”

Dr Aukot said he often went home late in the night. Leaving office before 8.30pm was unheard of.

“I used to visit my larger family quite often, but I could not visit them ever since I came on board the CoE,” he says. “I also hardly meet my friends However, I consider all this worth the sacrifice.”

Prof Fredrick Ssempembwa, from Uganda, said he had to be away from family for stretches of nearly a month.

Heated debate

The experts’ sittings were serious affairs. One commissioner recalls heated exchanges and emotional debates.

They would debate about the inclusion or dropping of a particular clause that existed in the Bomas, Kilifi or Wako draft. Sometimes, and meetings would turn acrimonious.

Mr Kitonga describes the exchanges as heated intellectual arguments, especially since the committee had made a rule that any proposal from members had to be justified with the Bomas, Wako and Kilifi drafts or the current Constitution.

“The commission had to find a way to ensure that everybody’s views were addressed. We agreed our working would be through consensus,” said Mr Kitonga.

Ms Ndung’u lauds the chairman for maintaining a cool head and being a good moderator.

“The commissioners came up with the ground rule: If you come up with an input, back it up. It is the only way we could ensure objectivity,” she said.

Mr Chaloka Beyani, from Zambia, was one of the three foreign commissioners. He said that although tempers flared, the discussions were very intense.

One commissioner said the clause on the universal suffrage took forever to be agreed on. After a long debate, it became necessary to put it to vote.

“This is the only clause that was decided by a vote.”

The key sticky areas that elicited heated debates were devolution, the Executive, the Legislature, the Judiciary and the transitional clause.

“We had very long debates on these clauses,” said Mr Kitonga. “The commissioners had varied opinions based on the drafts, but we reached consensus.”

But it was not always high spirits at the commission headquarters. The spirits were often dampened each time a politician misinterpreted the draft to Kenyans.

Some politicians even claimed the CoE was fraudulently changing some clauses and including new ones that were not in the original drafts.

“It really hurt to be labelled as fraudsters by respectable leaders when you were spending endless days and nights trying to capture the aspirations of the nation,” said Bobby Mkangi, a consultant and trainer on rights and protection of children.

Prof Sempembwa’s focus was mainly on human rights.

“I felt down-hearted when the media reported that I was threatening to go to court to bar the PSC from making amendments to the draft,” said the professor.”

The Ugandan said he sent a message to his colleagues saying if the PSC drastically changed the draft, then they would reject their alterations, at least in areas where consensus had already been achieved.

Mr Kitonga said his lowest moment was when they held a meeting with political parties in Mombasa.

“The parties could not agree on anything.”

Mr Kitonga continued: “This was dampening to me as they seemed to disregard the importance of the constitution-making process; they could not agree.”

But there were also moments when the commission felt elated by the turn of events.

First was when more than one million Kenyans made submissions to the commission on the draft. The other one is when Parliament passed the draft constitution.

“We were amazed when Kenyans came forward and added input on what we were doing; that was quite encouraging,” said Ms Chesoni.

The triumph when Parliament passed the draft was very dramatic for Mr Otiende Amollo. On the night prior to the final debate in Parliament, his wife, Linet, gave birth to triplets, two girls and a boy.

“I was really elated; it was sweet victory for me,” said Mr Otiende.

Mr Kitonga said one of his high moments was the day the Parliamentary Select Committee reached a consensus on the Executive chapter at Naivasha.

“I was very happy, my hat goes off to the chair of the PSC and the entire group for having resolved this amicably and faster than I had expected.”

Mr Mkangi is thankful for the supportive comments they got from ordinary Kenyans in the street and in supermarkets queues, a sentiment shared by Prof Christina Murray from South Africa.

When the parliamentary debates were going on, Ms Ndung’u had travelled to the United States to visit her family.

“I was seated in the sitting room so engrossed in the proceedings that those in the room asked me why I had to leave the country. They didn’t understand that what had been passed was so dear to me. When they passed it, I felt so victorious and I realised the chances of Kenya getting the new constitution were high,” said Ms Ndung’u.

Mr Otiende said he was surprised by the level of awareness of the draft among Kenyans when the commission visited the provinces.

Whereas Ms Ndung’u celebrates the dual citizenship clause and the ability of a mother to pass on her citizenship to her child and other human rights clauses, Ms Chesoni said the clause on the prohibition of discrimination against disability was a boon to the country.

Given another chance, Chaloka Beyani would want the senate to have more powers.

“I feel that the Bill of Rights should have stuck to the original clause; every person has a right to life. A person should not be arbitrarily deprived of life. I believe it was a more neutral position,” said Mr Beyani.