HOMEGROWN NEW CONSTITUTION:

We believe that the sole source of legitimate sovereign authority that powers and drive the wheels of government is the people expressed through the General Will in constituting a State, setting principles, guidelines, and rules, clearly stipulated in the supreme law of the land - the Constitution. Consequently, the Constitution becomes the human Holy Writ. This document carries all our values, virtues, aspirations, hopes and that of posterity. The Sovereign Authority of the people that wheels the government is omnipresent in governance. We express it through Fair and Free Elections, Recalls, Referendums, peaceful protests, picketing, strikes, and demands for public officer resignation, legal redress, lobbying and participation in governance.

The objective of writing a new constitution was to remove medieval monarchical indoctrinations carried over from the British colonial government, modified by the First President to serve his revengefulness and perfected by the Second President in his struggle to cling on to power. At the same time to remove colonial indoctrinations, bad leadership and redesign our institutions, distribution, and allocation of Sovereign Authority of the people--Horizontally and Vertically to decongest the centre and remove absolutism and imperialism. Kenyans wanted to take ownership of their country and sovereignty, create responsive structures and institutions that would exercise the delegated Sovereign Authority independently and fairly to benefit the people. In this way, we would expand the democratic space and promote good governance. Kenyans had also realised that the key determinant for successful democratic consolidation is the ability of democratically elected governments to provide "good governance."

Although many citizens of developing countries value characteristics associated with democracy (e.g., elections, human rights, and representation), they are often equally interested in qualities such as public accountability, responsiveness, transparency, and efficiency. "Good governance" therefore means the government's ability to maintain social peace, guarantee law and order, promote or create enabling conditions necessary for economic growth and wealth creation, and ensure a minimum level of social security.

Kenyans equally understood from the past independence experience that many new governments fail to realize the long-term benefits of adopting effective governance policies and slip into dictatorship to sustain themselves in power. Even in cases where governments recognize the value of such policies, they often lack the capacity to implement them. For these reasons, newly democratic governments too often revert to more familiar patterns of authoritarianism and abuse. It was also clear to them that the behaviour of formal state actors can support or undermine developmental and democratic processes and sustainable development. The struggle in the second liberation by Kenyans was to remove monarchical indoctrinations carried over from the British colonial government, modified by the First President to serve his revengefulness and perfected by the Second President in his struggle to cling on to power. We had to increase our courage to confront and disband the then existing oppressive structures and replace them with better ones or restructure them to fit our then circumstances. Beyond restructuring, we had the obligation to remain on the steering wheel through participation in decision-making to determine our destiny and that of our posterity.

We had to increase our courage to confront and disband the then existing oppressive structures and replace them with better ones or restructure them to fit our circumstances. Beyond restructuring, we had the obligation to remain on the steering wheel through participation in decision-making to determine our destiny and that of our posterity.

 The Review process was completed by the National Constitutional Conference and adopted a Draft Constitution on 15th March 2004.

Since the Bomas Draft Constitution was adopted on 15^th March 2004, the process of enactment and operationalization of the resultant document has been marred with problems and continues being hindered with various hurdles based on political interests, power and resources sharing formulae. After parliamentary amendments to the Bomas (People’s) Draft Constitution, NARC regime took the resultant document to the Referendum where the people rejected it on 21^st November 2005. These parliamentary alterations fundamentally altered the structure of government envisaged by the people and parliament usurped the collective will of the people, failed to recognise the core demands and values of the people, and the people’s sovereignty. Referendum campaigns were dominated by propaganda, ethnicity, vengeance politics, myths, euphoria, corruption, bribery, sometimes hooliganism, fear of unknown etc. In January 2006 the government set up a Committee of Eminent People (COEP) to get public views on why the proposed Constitution was rejected, and in October 2006 government set-up a Multi-Sectoral Forum to charter the way forward in jumpstarting the review process. In 2007 the government raised two bills to amend the constitution and entrench the review process and the other to guide the process to a logical conclusion.

REFERENDUM

THE VERDICT OF THE NEW KENYAN PROPOSED CONSTITUTION IS REJECTION.

  The Kenyan people gave their verdict on the 21^st November 2005 and overwhelmingly rejected the New proposed constitution in a Referendum by 57.5%. Seven out of the eight provinces in Kenya rejected it. The only province that voted to adopt the proposed constitution happens to be the president’s home province. Apparently, they voted to protect the presidency.

The people-driven-process was hijacked by the political elite, who manipulated the people’s document and introduced a Presidential system of government against the Parliamentary system expressed through the will of the people.

The process of struggle for a new constitution, which started about 15 years ago through populous demands that forced the parliament of the day to enact a law in 1997 that set a framework for the provision of civic education, collection and collating of the people’s views by the Constitution of Kenya Review Commission. The National Constitutional Conference concluded the process on March 15^th 2004 after fine-tCELAK ing the people’s views.

The resultant document popularly known as ‘Bomas Draft Constitution’ remained a popular version for the people of Kenya. However, the President’s men who were apparently unhappy with the reduction of Executive powers of the President went ahead changed and mutilated the draft single handed, named it ‘Wako Draft’ (named after the Attorney General who wrote it) and presented the flawed document for ratification by the people through a popular vote. 

Consequently, people of Kenya rejected the document on various grounds including:

Ø    NO SENSE OF OWNERSHIP: Kenyans felt that they were not adequately consulted and involved in the preparation of the proposed constitution. They equally felt short-changed by one dominant tribe, unpredictable leaders and emotionally rejected the draft. The rest of 41 tribes united to rebel against the political and economical dominance of Kikuyus. Some rejected the draft because of voter apathy and disconnection between messengers and the people, while some citizen simply rejected a government project that they perceived was going to advance misrule and the interest of those in government.

Ø    The very leaders who agitated for establishment of certain institutions to enhance good governance when they were in opposition are the very leaders when in government who have shifted positions to reject their own proposal. For example they had proposed the establishment of Prime Minister position with executive powers and a President as Head of State and this was well captured in the Bomas Draft. Paradoxically, the Wako Draft established a President as Head of State and Government, with a non-executive Prime Minister.

Ø      People were not well prepared through civic education to make informed decision on the document; hence, the political elite who had vested interests in the new constitutional order prevailed on the decision-making. Some rejected the proposed constitution because of the fear of the unknown.

Ø      Despite Civil Society Organizations demands for more time for the provision of Civic Education on the document the government refused, and became evident that they wanted to confuse the ignorant masses to ratify the draft without knowing its contents. Hence, CSOs were forced to campaign for rejection to give people enough time to read and be thought about the implications of the draft before they ratify it and imprison themselves and posterity.

Ø    The political campaigns that characterised the referendum campaigns were confusing and unrelated to the contents of the document. The campaigns were mainly tribal and protection of the presidency and current regime. Therefore, People were not able to vote on the merits and demerits of the proposed constitution.

Ø    Ambiguity and lack of clarity in the proposed constitution especially on women issues e.g. women constituencies and marginalized group’s seats in all elective and appointive offices to meet the one-third gender requirement. The draft promoted inequalities instead of equality and equity.

Ø    Abolition of Senate and other structures essential in the democratisation process through Devolved government which was intended to enhance people’s participation in governance. The proposed constitution actually envisaged Centralization and delegation of power to District governments instead of Decentralization as people wanted.

Ø    It created a powerful presidency that would create and abolish institutions and hire and fire every public officer in the country at will. This powerful presidency would promote abuse of Human Rights with immunity, enhance dictatorship and totalitarianism. The proposed constitution gave the president power to destroy multi-party democracy, which people had died for to achieve, by appointing the cabinet from members of parliament from other parties.

Ø    The proposed constitution was Non-self-execution, hence the need to pass 67 laws to operationalise it. These laws were to be passed either by the very parliament or the Attorney General that people mistrust, because of corruption and their tendency to usurp the people’s sovereignty.

Ø    Some citizens voted against the regime, which since coming to power has been submerged in internal wrangles based on a campaign Memorandum of understanding and has failed to deliver to the Kenyan people the campaign pledges on which they were elected. Some voted on their dissatisfaction of government performance, mistrust and rejection of government project.

Ø    Establishment of Christian and Hindu courts, which created a contradiction between separation of State and Religion.

Ø    The campaign by the president’s men was characterised by selfishness, political disorganization, arrogance, insulting of opponents by the supporters of the draft and violence. The campaigners allocated themselves with the wisdom to decide for the people. The demands of the people to have the two drafts presented for referendum failed as the president’s men told people to accept the Wako Draft or retain the colonial parliamentary amended constitution. The people opted for the latter. What the campaigners did not know was that the votes were to be cast by the people.

Ø    The campaigns focused on personalities, propaganda and innuendos instead of on the issues, factual information and substance in the document. Since Kenyans wanted to retrieve their sovereign authority from government through a constitution that can serve their interests, aspirations and preserve our values through participatory governance, they had to reject that document which centralised all political power, resources and opportunities. 

Ø    The document did not recognise women and the minorities, who happen to be the majority. This was contrary to the wishes of Kenyans who had said that they wanted equality and equity.

Ø    There was bribery by the president’s men to influence the voting pattern. People wondered why the Statehouse and State operatives were bribing them to RATIFY the peoples Constitution. However, Kenyans having had similar situation and having seen the consequences of decisions made under such monetary influence took the bribes but vowed to vote by their conscience. These bribes opened the eyes of citizens toward corruption activities in a regime elected to eradicate corruption.

OTHER REASONS WHY THEY VOTED NO

• EXCESS EXECUTIVE POWERS

• Political leaders raffling, between different camps.

• Personalized the whole issue: politicians personalised and trivialised the process. 

• Lack of Decentralization of Executive power

• Legislature of the Constitution

• Taxes of livestock & Agricultural products

• Political power Distribution

• Sabbath Day abolished

• Land issue & legislation

• Abortion

SOME POLITICAL ISSUES

o       Threats that there was going to be Dissolution of local Authorities

o       Bribes:- people wondered why they had to be bribed to vote for their constitution

o       Executive powers vested in one person

o       Political clanism, patronage and allegiances

o       Imperial president

o       Lack authority in the various of arms of Government

o       Abolition provincial Administration. People were fearing how their problems were going to be solved after the abolition of provincial administration.

 o       No Consultation & involvement of the citizens.

o       Civic Education was rushed on People.

o       Civic Educators lack understanding of the Document and CKRC civic education providers were one sided.

o       Corruption –Civic Education 

o       Political intimidation and arrogance.

o       The fear of unknown.

 o       Time was limited

o       No materials for comparison

o       Contradiction in articles

o       Pledges & promises especial from the president: increase of Councillor’s salaries.

o       Lack of knowledge

o       Scares of Regionalism that could enhance tribalism.

o       A amendment processes: long and tedious.   

o       Devolution of resources:- uneven distribution of Resources and opportunities.

o       Lacked political Direction/National procedures

o       Political egoism

o       The document was too legalistic

o       Non identification of Contentious issues

o        Voting for unknown

o       Lack of strategy

o       Arrogance of the Messengers

LESSONS LEARNT AND WAY FORWARD.

The pursuit for a better new constitution remains a priority to the Kenyan people, which shall substantially address our aspirations, fears and unite us in our values, religions, culture, and diversity.  We need a constitution that will protect Human Rights, freedoms, the minorities and the vulnerable groups. However, it is now clear that the consent of the people can only be obtained if the constitutional makers consult widely all the people of Kenya. The constitution is the property of the people of Kenya and whoever that shall be given; the mandate to write it on their behalf must acknowledge that fact. It is clear that the role of the government of the day is facilitation and providing an enabling environment.

 All Kenyans accepted the VERDICT of the people through the ballot box and now we must come together and match on. The country must move on. Our country is greater than us all. Kenyans agree that:

 (1)        There is no constitutional vacuum.

(2)        Acceptance of the people’s verdict by the government.

(3)        Acknowledgement by those in government that they are servants of the people and that the people’s decision is final and binding to ALL.

(4)        Kenyans have sent a strong message to the regime to change otherwise get a ‘RED’ card in the next national elections in 2007.

(5)        Reconciliation and Healing process to unite the country.

(6)        Change of attitude and Stopping of arrogant behaviour of those in government and changing from being masters to servants of the people.

(7)        Kenyans shall continue demanding for a New Constitutional order. The process is likely to be restarted by Parliament setting a new framework that will guide the process using the ‘Bomas Draft’ as the primary document.

(8)        Enhance Civic Education on all the documents involved in the constitutional making process. Awareness and empowerment of citizens remain a priority.

(9)        Strengthen institutions instead of personalities.

(10)   Examine the Presidency post-Referendum and restructure cabinet. Leaders to make their interests to coincide with the country’s interest. Give Kenyans the confidence that Kenya is still on track.

(11)   Celebrate our unity in diversed.

(12)   Government to start making decisions informed by the needs of the people. Bottom-up-approach.

(13)   Set good criteria to elect good leaders to serve in government.

(14)   Reduce ethnic inclination in making National decisions.

(15)   Government to change the direction of governance.

(16)   Kenyans are gradually retrieving their sovereign authority, which had been usurped by previous regimes.

(17)   Kenyans are determined to move to an open society where they hold public officers accountability.

JUMPSTARTING THE CONSTITUTIONAL REVIEW PROCESS.

DRAFT BILLS IN 2007:

 TO SAFEGUARD THE LAW REFORM AND GUIDE THE CONSTITUTIONAL REVIEW PROCESS. 

The previous year 2006 the government set up a 40 members Multi-Sectoral Forum that brought together Government, Political parties and Civil Society Organization to make recommendations on the necessary minimum reforms to jump start the review process, including the legal reforms necessary for a an inclusive free and fair electoral process in preparation for 2007 National Election. 

This initiative was in line with the government plan of jump-starting the review process. The Multi-Sectoral Forum deliberated and came up with the following recommendations.

CONSTITUTIONAL AMENDMENTS RECOMMENDATIONS: 

[1]       Entrench both the constitutional review process and Referendum law in the constitution: To amend the present constitution to entrench both the constitutional review process and Referendum law in the constitution. This was necessary to remove the mandate of constitutional amendment or the review process from parliament to the people through a Referendum. The entrenchment of the Referendum could place the process above court jurisdictions hence no litigations from president’s men and disgruntled citizens. 

[2]       Independent Electoral Commission of Kenya: The Multi-Sectoral Forum also recommended the creation of and Independent Electoral Commission of Kenya with nine commissioners that would funded directly from the Consolidated Fund (Financial autonomy) and power to deal with electoral offences. This was intended to set a level playing field ahead of the next year’s election.

[3]       Parliament to control its calendar: An amendment to provide for Parliament to control its calendar. This was intended to remove parliament from the control of Executive.

[4]       Independent Candidates:.  This was intended to allow independent candidates to consent the elections to expand competitive politics.

[5]       Create 74 Parliamentary seats for women, 42 New Constituencies, 20 for Marginalised groups, 12 for political parties, 4 seats each for youth, trade unions, pastoralists, persons with disabilities and minority groups. This will increase Parliamentary seats from 210 to 358.

When the Multi-Sectoral Forum presented these recommendations to the minister for Justice and Constitutional Affairs, she accepted item (1), and rejected items (2 to 6) above. Consequently outrage, protests and walkout by the major opposition political parties representatives, submerging the review process into another stalemate.

The minister however went public and indicated the government’s determination to present the two Bills to parliament for the item (1) above. It was unlikely that she would get a support of 148 MPs out of 222 to pass the Bills into law as required by the current constitution, because the opposition parties feel betrayed and taken for granted.

However, it is important to note that ALL the Multi-Sectoral Forum recommendations are provisions in the Bomas Draft Constitution, which the government excluded in the Attorney-General Draft that was rejected in the Referendum.

 In our Civil Society organization Forum held in December 2006, we unanimously agreed to support, lobby and push for the enactment of these two Bills. We look at this action as an opportunity to move the review forward irrespective of the regime that comes to power after the National elections in this year (2007). The two bills never got to see the light of day.

DRAFT BILLS:

The Constitution Amendment Bill to entrench the constitutional review process in the present constitution and another bill to jumpstart the review process have been drafted by the government and are awaiting publication by Attorney General to be tabled in parliament in March 2007 when parliament resumes.

The constitutional amendment Bill to entrench the review process in the present constitution is a major step in the right direction, while the legal framework to guide the review process is the starting point.

ENTRENCHMENT TO SAFEGUARD THE CONSTITUTIONAL REVIEW.

 The Constitution Amendment Bill is proposing to entrench the review process in the constitution in order to protect the process from political interference and manipulations, which in past characterized the process leading to its rejection by the people at the referendum. 

 The Bill has proposed:

[1]        The path to be followed to replace the present constitution.

[2]        The insertion of a new clause in the current constitution giving Kenyans the sovereign rights to replace the current constitution which would be exercised through a referendum.

[3]        The Draft constitution was to not be amended unless the amendment is proposed in parliament and passed by 65% of the members.

[4]        Once the Draft constitution (Bill) is passed and published, the Electoral Commission of Kenya was to within 90 days hold a referendum. If passed at the referendum becomes law and replaces the current constitution.

THE LEGAL FRAMEWORK TO GUIDE THE REVIEW PROCESS. 

The Bill proposes and provides a road map to the logical conclusion of the review process by setting up of the following review organs —

[A].       Council (CKRC) the review process supreme organ

[B].       Conference and referendum. (National Constitutional Conference)

[C].       Referendum.

The proposed law outlines the composition, timelines and deadlines of each organ within which the Council was to conclude the process.

Council (CKRC) THE REVIEW PROCESS SUPREME ORGAN

COMPOSITION.

The Council must be established with seven days of enactment of the Act. It was composed of 80 members drawn from political parties, religious groups, civil societies, minorities and women groups. These members were to be drawn from 35 organisations. NGOs, women groups and Supkem would provide six, four and six members respectively, while remaining organizations were allocated 2 members each. These members were to elect 43 members among them to serve as the Implementation arm equivalent to the Steering Committee. "The steering Committee was to be the principal organ of the Council in the execution of its functions and was to have general oversight of the secretariat of the Council," Bomas Draft Constitution would the primary documents this process. The Council is expected to harmonise the Bomas Draft and other drafts before tabling the Draft Constitution before the Conference. The Council is expected to table the Draft Constitution at the conference within two months of being set-up. At that time the document was to be published and Kenyans were to be allowed to critic it.

 The Council is expected to complete its mandate of running the conference, organizing the Referendum and eventually winding-up within 12 months of their establishment.

CONFERENCE AND REFERENDUM.  (NATIONAL CONSTITUTIONAL CONFERENCE)

 The conference was to have 256 members, who will be elected by their respective organisations:- 104 District delegates,  all Parliamentary and non-parliamentary political party representatives, interest groups such as Ethnic and other minorities, pastoralists, persons with disabilities, trade unions, women and youth; faith constituencies, women groups, civil society, professionals, trade unions and special category constituencies. The Council was to also have two co-chairpersons and their deputies to be elected democratically. The Council was to have a secretariat run by the director. The director, together with the Justice minister and Attorney General, were ex-officio members of the Council. They was to also have two joint secretaries, who was to eventually be the rapporteurs of the Council and conference. 

(1)        The duties of the Conference were to be to negotiate the resolution of identified contentious issues. During the 2005 referendum, the contentious issues were:

(2)        Powers of the Executive,

(3)        Legislature,- Bicameral- Entrenchment of Senate to safeguard devolution. 

(4)        Devolution -- Determine the units of devolution, composition and powers of each.

(5)        The Kadhi’s courts-- Christians claimed that Kadhi courts were not to be entrenched into the constitution.

(6)        They may also consider the system of government e.g. Parliamentary, presidential or a hybrid of the two systems of governance,

(7)        Entrenchment of the recall clause to vote out the under performing elected representatives midway the term of office.

TIMELINE

[1].     At the conference, the Draft Constitution would be decided by consensus. If they do not reach a consensus, delegates were to be expected to vote with two-thirds majority carrying the day.

[2].     The conference was expected to complete its work within 30 days and submit the report to the Attorney General. The Attorney General will only have seven days before tabling the document in the House.

[3].     Parliament will have 15 days to debate, amend and adopt the Draft Constitution, which will be relayed to Attorney-General who will within 30 days publish the proposed new Constitution.

[4].     The Electoral Commission of Kenya will then be given 60 days to prepare for the referendum. The Draft Bills outline the referendum timetable.

[5].     During the period, the Attorney-General were expected to frame the referendum question, which must be approved by Parliament.

[6].     The rules of the referendum were to be similar to that of an election. However, the Draft Bills outlaw usage of State resources to campaign during the referendum.

[7].     After the referendum, contestants were to only have 14 days to challenge the outcome. This can only be done through the High Court. However, the petitioner must deposit Sh2 million as security to be able to challenge the referendum in court. The Bills also insulate the Council and its director from prosecution. "A member of the Council or the director was to not be liable to arrest under civil process while participating in any meeting of the Council,"

[8].     According to the documents, the Council was to stand dissolved 45 days after the day the President proclaims the new Constitution to be law. That is also when the Act will lapse.

 The Council was to summon anyone during its business and anyone who refused to appear before the Council would be jailed for three months or be fined Sh10,000 or both.

 2008. The National Dialogue Committee chaired by His Excellence former united Nations Secretary General Kofi Annan recommended a New Constitution within a year.

Issues To Be Revisited:

(a)   Determination of System of Government – Parliamentary or Presidential--to provide a road map under which the government operate.

(b)   A President or Prime Minister elected by universal suffrage shall exercise the Executive Authority.

(c)  Appointment of cabinet from outside parliament.

(d)     Recall of all elective officers. The question often raised is: If an employee is not doing the job he was employed to do, must the employer pay his/her salary?

(e)   Quorum for all elected and appointive public bodies be 50%.

(f)   Introduction of Jury System

(g)  Clamour for ownership of our land from foreigners. Foreign land ownership be less than thirty years. Redistribution of Land as a Factor of Production--Economic Resource. (10% of Kenyans own 73% of the land). If we must prosper, we must reverse this statistical figure.

(h)  Establish Administrative capital at Mau Summit or elsewhere in the country, so that Nairobi remains Financial or Commercial capital.

(i)   Deciding on remuneration of President, PM, Senators, MPs, Governors. If this public officers are employees of the people, the people must decide the terms and conditions of employment.

(j)   Age limit of 70 years for a President and all public and State officers.

(k)  Elected persons serve for two terms, then rest one term before standing for re-election.

(l)    Political inheritance and the issue of one person one job.

(m)  Separation of executive and Legislature by appointing Cabinet Ministers from outside Parliament, through Regional Electoral College. Where District Councillors in the region come together and elect a Cabinet Minister and assistant. The regions from where the PM and the two DPMs come from elect opposite gender.

We look into the future with hope and optimism.

We must not consistently stay in the past; we must put the past to rest in order to face the future under a New Constitutional order.