CIVIL
SOCIETY PARTICIPATORY CONSTITUTIONAL
MAKING PROCESS AND UPDATES:
Why we are
asking you to fund this Project.
Although in past, Constitutional making process in Kenya has been
treacherous, prolonged, marred, hindered and stalled for various
reasons including distribution of political power and resources,
minority and majority interests, the role of government and that of
citizens in the review, human rights, institutional infighting,
ethnic and national interests etc. The recent post-election ethnic
violence served as awaking bell and became a higher National Call
for a New Constitution. Prepare Kenyans to face realty and overcome
our past divisive hurdles to make hard decisions now to safe the
future.
The Constitutional
review process started in 1992 and stalled in
stages for various reasons, until 2005 when the
government presented a proposed draft constitution to a Referendum
where Kenyans rejected it. The two drafts in contention are Bomas
and Proposed Draft Constitutions. The Bomas Draft is a collection of
people’s views collated by a commission and gradually fine-tuned by
the National Constitutional Conference (NCC) held at Bomas of Kenya
hence its name. The Proposed (Government) Draft Constitution
infamously known as Wako Draft was a product of fundamental
Executive and Parliamentary amendments that altered the governance
structures envisaged in the Bomas Draft by the people and the same
was written by the Attorney General hence its name.
At the
time, there was political polarization and most Kenyans voted
according to politician’s popularity, but not content. Since the
protagonists are in Grand Coalition Government and their negotiated
settlement included having New Constitution, there is
optimism that a New Constitution shall be delivered.
It was until
post-election ethnic violence, which erupted after the
National Elections held in December 2007 that saw
thousands killed, others internally displaced and property worth
millions destroyed and burnt that a New Constitution became a
priority. In the period between January and March 2008, Kenya
was ungovernable. Consequently, the African Union
formed a panel of Eminent African personalities chaired by the
former United Nations Secretary-General Kofi Annan to assist Kenyans
resolve the national crisis that followed the December 2007
elections. This committee identified causes of the skirmishes as:
Stolen Elections, a System Of Government With Centralization Of
Resources, Political Power and Opportunities; Inefficiency,
Obsequiousness and Sycophancy; Winner-Take-All, Ethnicity, Poverty,
Inequality, Marginalization and Unemployment; Past Injustices
Including Land, Human Right Abuses, Inequitable Distribution Of
Resources, Corruption, and Mismanagement Of Public Resources; Lack
Of Transparency, Accountability and Impunity. They identified the
New Constitution stalemate as an impediment to good governance and
one of the causes of the violence. The panel recommended a New
Constitution within a year and the protagonists signed an Accord to
this effect and formed a Grand Coalition Government. Since then the
government has tabled two bills in parliament to jumpstart the
review process and entrench it in the constitution.
Consequently, the Minister for Justice
and Constitutional Affairs moved and tabled two Bills to jumpstart
and guide the Constitutional Review Process and another to entrench
it and Referendum in the constitution.
[For Details of the Bills Click here]
[1] Kenyans
being the sole source of legitimate sovereign Authority are equal in
diversity and shall enjoy equal access in all aspects of the
Constitution-Making Process to express their collective general will
and direct it towards the common good.
[2] Restore
the sovereignty of the people of Kenya as the repository and holders
of direct and residual power.
Kenyans need a Constitution that shall
legalise and make citizens the sole source of legitimate sovereign
authority, Parliament the voice and agent of the people, serving as
the central nerve system linking all the other three branches of
government.
[3] Republican
States, unlike monarchs embrace equality, equity, the principle of
subsidiarity (citizen participation in governance from grassroots
upward).
[4] When
people are sufficiently informed about their Constitution, they
shall willingly guard against each other’s interest for the common
good.
[5] The
process shall be founded on the principles of Accountability; Moral
uprightness; Trust; Honesty; and Integrity.
[6] Both
the Moral and political will shall not be undermined during the
process but shall be directed towards the common good for all the
peoples of Kenya.
[7] There
shall be respect for each other’s opinions, openness, broad-based
consultations and constant/continuous constitutional education in
the Constitution-Making Process.
[8] There
shall be sincere Democratic Dialogue and build consensus especially
on contentious issues, make compromises to get a document acceptable
to majority of Kenya for Ratification in the YES---YES Referendum.
[9] All
Organs of State shall work in a co-operative and complementary
manner.
[10] The
principles of proportionate equality, inclusiveness and equity of
all persons and resources shall be of cardinal importance.
[11] The
New Constitution shall secure ALL gains already made and shall build
on experiences.
[12] Citizen
shall remain vigilant to safeguard the process and the final product
(New Constitution) from mischief and self-interest.
[13] The
Homegrown Constitution shall be enacted for our posterity and
ourselves.
[1] To
ensure that the Sovereignty of the peoples of Kenya, who have the
right to exercise it directly and indirectly prevails and since they
have constituent power, their involvement in decision-making shall
reign at all times;
[2] A
Constitution being the collective general will of the people of
Kenya hence its Supremacy shall be the bedrock on which governance
shall be anchored. Since Kenyans remain optimistic in entrenching
the culture of constitutionalism, the process and final product (New
Constitution), shall be participatory to enhance ownership and the
New Constitution shall never be amended without the endorsement of
the peoples of Kenya;
[3] The
Process and the Product shall uphold the Peoples’ rights and dignity
of the human person at all times.
[4] The
Process shall promote Equity, Equality and Non-marginalization of
all peoples;
[5] Peoples
of Kenya shall determine their form and nature of governance and
destiny;
[6] The
Process and the Product shall Respect ethnic and race diversity,
Communities and individual Citizens and their cultures, resources
and heritage to forge peaceful co-existence, national unity and
integration;
[7] Guaranteeing
the realization of all rights of all the peoples through equitable
access to natural and economic resources;
[8] Principles
and values of leadership such as moral responsibility,
accountability, integrity and honesty shall be upheld at all times;
[9] Recognition
of regional instruments in the spirit of the Banjul Charter to
promote the principle of Pan-Africanism and strengthen the heritage
of African societies;
[10] Recognition
of international instruments that promote a democratic culture and
nurture dialogue among world nations;
In order to achieve the above set
objectives the process shall be continuous and thorough
constitutional education to entrench the culture of
constitutionalism, which shall instil these value-systems both
within the process and after the enactment of New Constitution.
Kenyans believe this
Homegrown Constitution shall be a beckon for structures that shall
ensure equity on distribution of resources and political power,
equality, non-marginalization, justice, peace, inclusiveness,
tranquility and guarantee stability, inclusion, national unity,
integrity, freedom and protection of human rights and eliminate
corruption and poverty. It will also establish free democratic
system of government, set political (law and order), social
(morality and institutions) and economic (infrastructure, commerce
and resource management) frameworks for prosperity. It will provide
for Devolution of power[For
Details click here], independent
democratic governance institutions, separation of powers, checks and
balances, transparency, and accountability of public institutions
etc. It shall also enhance citizen participation at devolved levels,
proper management of public resources and reduce poverty. The
citizen’s faith in the Homegrown Constitution as the foundation of
culture of constitutionalism, democratization, new ideals,
opportunity, liberty, hope and prosperity is whole, total and
complete, as it will bring a new transitional leadership of the
spirit of service and responsibility upon Kenya. The New
Constitution shall create an end to imperial presidency,
centralization, corruption, impunity etc and bring upon us a turning
point, fundamental shift in governance, a rebirth, renaissances,
common sense of purpose and hope. It shall be unifying factor,
foster Peace, Security and sustainable development.
The project shall create the necessary awareness and preparedness
required for citizens’ participation in the formulation of the
constitutional review process and their share of involvement to
bring the review process into a logical conclusion by ratifying the
negotiated resultant document. After the Ratification of the
Constitution the next face will be domestication of the Homegrown
Constitution through provision of Civic Education. The project shall
make our hopes in the New Constitution a realty because it will
address issues of injustices, marginalization, inequitable
distribution of resources and political power. It will also address
issues of governance by providing for Devolution of power,
independent governance institutions, separation of powers, checks
and balances, transparency, and accountability of public
institutions etc. It shall also enhance citizen participation at
devolved levels, proper management of public resources and enhance
accountability hence reduce poverty. For Devolution Please click
[Executive]
[Legislature]
CELAK managers and
staff have the capacity and experience drawn from a similar project
conducted in 2005 to enable us successfully implement this project.
The facilitators of the project were former National Constitutional
Conference (NCC) Delegates, lawyers and consultants with whom we
have agreed to work together in this project. The leader of this
team of facilitators was our Executive Director Dr. Billy Onwong’a
who was also a former NCC Delegate, Chairman of Preamble Committee
and member of the Steering Committee. This team has the capacity to
mobilize rural civil society and impart civic knowledge, and skills
to women, marginalised, Community Leaders, Councillors,
vulnerable, Local Government Officials
and poor communities on both sides of the divide
to build consensus, democratic dialogue and harmonise the
contentious issue to get a negotiated document acceptable to
majority of Kenyans for ratification in the upcoming Referendum.
This project shall
give us an opportunity to achieve our set
objectives of making the people the agents
of change by working to help build solidarity within communities
through working with local groups to overcome ethnic, political, or
religious divisions that impede cooperation and government
partnership for the improvement of conditions affecting them all.
This increased citizen participation in political and economic
decision-making will go along way to enhance citizens’ open
exchanges, gender issues, democratic dialogue and partnership with
institutions of governance.
Our approach in Community mobilization
ensures citizens participation as stakeholders in decision-making
processes – in partnership with local government where possible – to
work together to develop their communities. This increased citizen
participation in political and economic decision-making depends
heavily on community openness to being active participants and
partners with government in improving local conditions. It is
enhanced when citizens gain practical experience in working together
to improve local conditions.
We mobilise civil
society or communities through their organization. We target groups
because of their capacity to acquire and impart knowledge, skill,
transform attitudes and therefore enhance people’s involvement in
the formulation and logical conclusion of the constitutional review
process.
Target audience
-
Community and
Religious Leaders.
-
Leaders of
active NGOs, FBOs and CBOs
-
Women
Organizations
-
Local Business
Associations, Neighbourhood Associations
-
Active
Professional Organisations.
-
Active Trade
Unions.
-
Active
Co-operatives.
-
Active Business
Organisations including from informal sector.
-
Youth
Organisations.
-
Market
Committees and Jua Kali Associations.
-
Common Interest
Groups.
-
Religious
Organisation and Groups.
-
Educational,
Cultural and Health Care Organisations
-
Constituency
Partners and Development Partners
-
Service
Ministries of Government.
-
Councillors and
Staff of Local Authorities.
The funding of this
project shall be timely and will have a significant impact by
empowering civil society to participate effectively in fair
allocation of sovereign authority to branches of government, advance
the democratic transition and negotiate legal structures for
consolidation of democratization process taking into consideration
the causes and effects of 2008 post-election ethnic violence.
Communities shall use the acquired capacity and skills to build
consensus to get a document acceptable to majority of Kenyans. The
Ratification of Homegrown Constitution shall be milestone for peace,
security and sustainable development.
CELAK is a young
National NGO, with high aspirations for reforms and is determined to
give good value for money. We shall appreciate if you fund
this project to enable us
enhance citizen participation in the Entrenchment
of the Culture of Constitutionalism during formulation, Referendum
and eventual ownership of the New Constitution. Any funding to this
project will give us a chance to proof our commitment to bestow high
level of civil society participation and political commitment to
democratic values, and constitutionalism as stakeholders, and our
worthiness to mobilise diverse ethnic communities for a common goal.
CELAK recognizes that
citizens of any country are the sole source of legitimate sovereign
authority that wheels government.
Note the following extract from
the New Kenya Constitution:
OBLIGATIONS OF
STATES (INDIVIDUAL)
The
Declaration on the Right to Development specifies several
obligations of States:
-
The duty "to ensure full exercise and progressive
enhancement of the right to development" (Article 10), including
"the right and duty to formulate appropriate national
development policies" (Article 2(3)), the duty to "undertake, at
the national level, all necessary measures for the realization
of the right to development" (Article 8(1)) and the duty "for
the creation of national conditions favourable to the
realization of the right to development" (Article 3(1)). (The
World Summit on Social Development refers to this final duty as
the commitment to create "enabling environments."
-
The duty to ensure "active free and meaningful
participation" (Article 2(3)) and to "encourage popular
participation in all spheres as an important factor in
development" (Article 8(2)).
-
The duty "to eliminate the massive and flagrant
violations of the Human Rights of people and human beings"
(Article 5) and to eradicate "all social injustices" (Article
8(1)).
-
The duty "to eliminate obstacles to development
resulting from failure to observe civil and political rights as
well as economic, social and cultural rights" (Article 6(3)) and
the related duty that "the promotion of, respect for, and
enjoyment of, certain Human Rights and fundamental freedoms
cannot justify the denial of other Human Rights and fundamental
freedoms" (Preamble).
-
The duty of "promoting, encouraging and
strengthening universal respect" for all Human Rights and
fundamental freedoms (Article 6(1)).
-
The duty not to discriminate on basis of "race,
sex, language or religion" (Article 8(1)).
-
The duty to "ensure that the resources released
by effective disarmament measures are used for comprehensive
development" (Article 7).
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