A Hail Storm is Visiting Us Soon....

PROLOGUE: A Happy 87th to The World's Greatest Living Statesman!








Let me kick off this essay by first wishing Comrade Madiba a very happy 87th birthday. Let me also congratulate Kenya's own Nobel Peace Prize laureate for being chosen to deliver this year's Nelson Mandela annual lecture.

SUMMARY

Here is what I am planning to do in this essay:

I want to talk about the adverse fall out that is already greeting news seeping and slipping out of the Sun 'N Sand Resort about the butchered version of the Bomas Draft of the proposed new constitution that a section of pro-Kibaki MPs are fast-tracking through parliament. But I want to talk about this fall out within the context of the ongoing conflicts in northern Kenya. In talking of these conflicts, I want to include the raging gender wars among the Samburu; I will also point out that many of the suggested remedies currently being bandied as the solution to the Marsabit banditry in my opinion, fall woefully short when it comes to the pursuit of a lasting, just and sustainable peace in that region of our country. I am also going to encourage online pundits frustrated about NAK's latest constitutional stratagems to try and avoid the temptation of familiar tribal finger pointing and tired personality focused what if scenarios.

Does the above qualify as an executive summary?

It is your call-I am not perching on one foot,struggling to stand still, tottering, anxiously awaiting your esteemed verdict, dear reader.

Moving right along...

1.0. Beyond Resolutions: Applying The Conflict TRANSFORMATION Model to the Northern Kenyan Context



Like many of my compatriots, I have been following with interest the series of events that have followed in the wake of the Marsabit massacres. Apart from the tit-for-tat killings of Borana villagers by avenging Gabra villagers and the never ending bouts of finger pointing by MPs representing these two communities, it has been intriguing to audit the official Kenyan government reaction to the North Horr carnage.

We have seen the tanks, the helicopters, the crack para-military troops and the triumphant press reports listing the number of bandits killed by the government.

I want to spend a few minutes dissecting the reaction of the government as expressed by its official spin doctor, Dr. Mutua. Here is an excerpt from a Kenyan daily:

Dr. Mutua yesterday said the attacks were a product of historical banditry and revenge missions among the communities resident in the region.However, he said diplomatic contacts with Ethiopia had been put in place in case the bandits have slipped into the neighbouring country."The Government would like to point out that this is a local issue. It is time we dealt with our own problems instead of blaming others," said Dr. Mutua during a media briefing in his office at Kenyatta International Conference Centre, Nairobi...Defending the Government against accusations that the massacre were an outcome of its negligence of the northern Kenya, Dr. Mutua said a series of meetings to defuse tensions between clans in the region had been taking place since January.He urged the clans to stop engaging in violence and assist the Government in restoring order in the region. "You can never stop people from killing each other if they want to. We now urge them to stop the use of violence to settle disputes," he said.

Isn't that a classic?

Bishop Ambrose Ravavi of the Catholic Diocese of Marsabit thinks it is "inter-ethnic" hatred that is at the root of the conflict while his Machakos counterpart Bishop Kivuva thinks the massacre should be declared a national disaster.

I recently suggested that the problems in Northern Kenya have long seated historical, ideological and socio-economic causes that have a lot to do with the continuing development of underdevelopment of the region that has been marking time even as neocolonial conditions "develop" unevenly in Kenya. I linked intermittent so called "ethnic clashes" based on alleged "ancient rivalry" to the logjam slowing down the passage of a new democratic constitution for Kenya.

Obviously there is a diversity of opinions about the Marsabit Massacre as to causes- which implies that there will different "solutions" proferred.

For instance, the Kenya Community Abroad in a statement issued a couple of days ago said inter alia:

KCA is very concerned that government does not appear to be doing enough to enhance security in this region of the country. We are particularly concerned that these raids and counter-raids have been on-going for the past few decades with no concerted efforts to secure the area.

We suggest the following steps:

-Seal off the borders with Ethiopia and Somalia until order is restored.

-Radically increase security forces in the area to guard against bandit cells still in the country. Alternatively, a public militia should be armed to protect isolated villages.

-Most importantly, increase security in public institutions. If necessary, children should be bused to school under armed guard.

We make these recommendations in light of the very possible threat that the situation can degenerate into wanton lawlessness with intensified raids.

Quite frankly. I am MORE WORRIED about the clamour for a war-like "law and order" security mindset more than I am about the possibility of further flare ups in Marsabit and other parts of northern Kenya.

This martial mindset HAS BEEN PART OF THE PROBLEM for decades.

Between 1903 to the 1980s the whole of northern Kenya was considered a "disaster and dangerous area" closed off to the rest of the country. It is the place where the Kenya armed forces went for their military exercises. And the NATO forces as well- where do you think all those Samburu rape claims against British troops come from?

In the mid-1960s, when my own father was dispatched to be the officer in charge of Mandera GK prison, he considered this to be a "punishment" because he was transferred there by the Kenyatta regime at the height of the so called "Shifta" secessionist menace. Things were so bad in terms of loss of life that I remember when we went to meet him at Wilson Airport in late 1967 when he was transferred to Machakos he came back with a young Somali orphan that he adopted after both parents perished. She became one of my sisters, moved to go and stay with my own mother and grandmother in Luanda Doho village, Kisa West, Kakamega District, Western Province, and was soon fluent in Dholuo. She is now a married woman with several children in the Garissa area.

I am mentioning my sister A. because she provided the first introduction to a dual reality that many Kenyans take for granted: our own government has declared war on its own people in the north for decades.

The second reality check I encountered about northern Kenya is when I was in Kamiti maximum security prison in the 1980s (I still cannot get over the irony of growing up as a pampered Prisons Officer's kid living in those mansions served by mahabusu and other house servants in the 1960s to being a Special Watch prisoner held in solitary confinement twenty years later). In swapping our life stories, I heard anecdotes from former Airforce, Army and other military personnel about what they used to do when they went on those "routine military exercises" in North Eastern Province and the upper reaches of Eastern and Rift Valley province. One vivid recollection that still stays with me was from a former soldier decribing how they once raided a Somali village and practically killed ANYTHING that moved- children, women, men, goats, camels- and torched dwellings and so on. They tied young Somali men behind Land Rovers, dragging them to their horrific deaths -that is when they were not dropping them off helicopters. And of course dozens upon dozens of women were raped-sometimes with bayonets and beer bottles. The purpose- to teach "them" a lesson after a DO or some other Kenya government officer was ambushed by bandits in that vicinity. Honest former and serving members of the Kenya military and other security forces can verify whether Onyango Oloo is making anything up. Speaking to Samburu and Somali social prisoners who had been convicted for cattle rustling I was told of this legendary brigand from northern Kenya who had become a serial killer and sniper targeting Kenya government officers to avenge for a horrendous torture at the hands of the crack Anti-Stock Theft Unit who had essentially castrated him before releasing him. I am not sure whether this thug was eventually killed- but to these Samburus, Somalis and other northern people, he was seen as some kind of a Robin Hood folk hero!

In other words, what is needed in northern Kenya is NOT more of the same old same old military and police repression.

We all know for instance, that when the GSU aka "Fanya Fujo Uone" are unleashed in a community the result is terror and carnage. And one cannot really blame the individual GSU members because that is what they have been trained to do- brutalize, intimidate and violate their fellow Kenyans.

The people of northern Kenya can be forgiven if they see the Government of Kenya and especially its uniformed representatives as the "enemy" after witnessing government terror tactics in their communities for close to one hundred years.

For instance as we write these lines, who has been keeping tabs on what the GSU, the AP, the regular police and other Kenyan security forces have been up to in Marsabit?

How many women have been raped by Kenyan government troops in the last three or four days?

How many innocent teenagers are being tortured to "confess" as we speak?

How many camels, goats and other livestock of pastoralists have been destroyed or stolen?

Why are the alleged "culprits" being shot dead?

Why can't they be captured alive so that they can one, help to provide more information and two, tried in a duly constituted court of law with a presumption of innocence and a right to legal counsel as pre-requisites?

Kenya has a super duper machismo culture and I see Kenyan women in positions of power struggling to outmacho their gung-ho brothers with "tough talk" for those "criminals" in northern Kenya.

I am concerned that using the pretext of bringing Marsabit "under control", the Kenya Government may actually be perpetrating a parallel, state sanctioned massacre of countless northern Kenyan innocents tagged as "marauding malcontents" by the neo-colonial state authorities in Nairobi.

One is not oblivious to the fact that the Kenya government in recent years has increasingly embraced the conflict resolution model in dealing with the chronic altercations among multifarious Kenyan communities in the north. As the spinmeister pointed out, there have been a series of peace meetings between the Gabra and the Borana going back to January this year, if not earlier. These peace-building efforts have to be commended and supported unequivocably. The fact that Marsabit also has some of Kenya's most eloquent legislators(like former Foreign Minister Bonaya Godana) will ensure that there will be a very vocal articulation of the problems in North Horr when parliament debates the massacre later this week.

What I want to put forward is a step beyond conflict resolution.

It is time to move up to the next level and explore CONFLICT TRANSFORMATION.

What the HECK is THAT?

Apparently it is a concept that has been doing the rounds in peace-building circles around the world for a number of years. I stumbled into CT last year in February 2004 when I was one of the panelists partcipating in Concordia University's Transforming Globalized Conflicts presentations on Thursday, February 19, 2004 from 5:30 pm to 8:30 pm here in Montreal.

In a nutshell this summary from the Final Report of that Concordia series describes the concept of Conflict Transformation:

1.1) Peace as a Transformative Process:
Peace is not just the absence of war but is, rather, a transformative process that involves a wide range of political, social, and economic forces being at play and in harmony. Peace is therefore related to a variety of such forces, including development, education, media, investment, justice,history, identity, and ideology. Peace involves building community, respecting diversity,fostering sustainable development, and nurturing the growth of dynamic civil societies.

1.2) Peace as Being Rooted in Communities:

Based on our discussions, and related to assumption number one, it would appear that we assumed peace to be less related to diplomacy and state policy than it is to local community initiative and action. That is to say, we identified peace as being a force that burgeons from the ground up rather than being implemented from the top down. We assumed that the peace of peoples can be more powerful and perhaps even more legitimate than the peace of states.

1.3) Basic Understanding of Globalized Conflict as a Phenomenon:

The concept of “globalized conflict” refers to the reality that conflicts do not only affect, and are not only impacted by, those living in primary/violent conflict zones and those living in diaspora communities. Instead, globalized conflict affect and are impacted by those living all over the world. Our discussions revealed an underlying conviction that no conflict is purely localized.With the globalization of the world economy, with rapid flows of capital, people, and resources across borders, and with the internationalization of the media, people of all communities, the world over, are inadvertently involved in all conflict. Whether or not the form of today’s globalization is inevitable, globalization itself, as a phenomenon, seems to imply inevitable involvement. In a globalized context, the distinction between local and international has become a moot point.

These three building blocks can be customized to develop a made in Kenya approach to conflict transformation. As I indicated in my previously cited essay, the Marsabit tragedy is a symptom of a bigger malaise- the stubborness of a section of the Nairobi-based political elite to accede to the wananchi's wishes for a national democratic constitution. The total failure of all the post independence governments of Kenyatta, Moi and Kibaki to integrate northern Kenya into the rest of Kenya is a marker about the doomed neo-colonial paradigm in our country.

To paraphrase some Biblical talk, verily, verily I say unto thee fellow Kenyans, unless we rebuild our country on a consistent democratic, peace-seeking and justice affirming basis, there will be MORE MARSABIT massacres.


Arrest and question ALL the MPs and political leaders you want. But remember, it is NOT the politicians who CAUSE the unrest (the most they do is fan the flames).

2.0. Gender Wars in Samburu Land: Defend the Gains of Umoja Village!

On a related note, the focus on northern Kenya by the Western mainstream mass media has reminded us of other important stories-away from Marsabit- that are unfolding and are worth a second look. For one, I have been following very closely the story of a women's only village in northern Kenya set up by Samburu women as a sanctuary for women escaping from domestic abuse and looking to restart their lives on an independent basis. I lifted this piece shamelessly from the Daily Telegraph:


(Mkamasiye Lebwaketa and Paulina Lekuriya wear the tribal bead necklaces their ‘women-only’ village sells)

A group of Kenyan women who fled abusive husbands to set up their own women-only community are facing increasingly violent attacks by local men angry at their success.

Turning traditional African patriarchy on its head, 15 women established Umoja village in 1990, as a refuge after their husbands' behaviour forced them to flee their homes.

Since then the village where women rule has expanded, its 48 members earning a living selling tourists brightly-coloured bead necklaces unique to their tribe, the Samburu.

However this revolution in their midst has outraged elders in the nearest town, Archer's Post, one dusty street lined with two dozen wooden shacks, in a scorched valley 200 miles north of Nairobi.

Angry young men with no money in their pockets now stop minibuses taking tourists to the nearby Samburu and Buffalo Springs National Reserves, warning drivers against stopping at Umoja.

Gangs a dozen strong have mounted daytime raids through the thorn fence circling the village, chasing the women into the bush, beating them with clubs and threatening to torch their stick-and-dung homes.

"We do not have peace in the village now. These men are so angry because we have money and we do not give them any," said Rebecca Lolosoli, 43, Umoja's de facto chief and one of its founders.

"We ran away first because we were being beaten and now we are trying to change our lives, we are being beaten again because of how we are doing well."

Local authorities have promised to investigate, but there is great pressure on police officers to turn a blind eye.

Umoja's first 15 members came from isolated villages dotted across this empty valley, bisected by the Ewaso Nyiro river.

They all fled after daily beatings from their husbands or brothers, often because they said they had been raped, some allegedly by British soldiers training nearby, and so had brought shame on their homes.

After trying to survive alone, brewing traditional beer in the bush to sell by the roadside, they banded together and began building Umoja, which means ''unity'' in Kiswahili.

Money started flowing into their newly-opened bank account from sales of the bead necklaces, which take three days to make.

Word spread. More women arrived, their belongings on their heads, babies strapped to their backs.

"I was raped and I told my husband and he started beating me, even when I was carrying the child, so I ran away and joined these people here," said Paulina Lekuriya, a striking woman with a wide smile who guesses her age at 35. Her story is echoed by the others.

Now Umoja has a campsite, is becoming a regular stop for backpackers and lorries, has a long-running craft stall and a new 50-pupil primary school.

Initially, local men tolerated the thriving community. Some formed relationships with the women - which the women controlled - fathering children who now live with their mothers in the village.

Some men tried to ape Umoja's success, setting up a rival trinket stall and cultural centre a kilometre down the road, which flopped within months.

Now their patience has worn out and the atmosphere is turning ugly.

"They are not supposed to be living like that, it is not our way," said one middle-aged man outside a bar in Archer's Post, his teeth brown from chewing the narcotic leaf miraa. He gave his name only as Peter.

Umoja has been attacked twice in the last three months. Attempts have been made to steal the village's 10 cows.

Tradesmen in Archer's Post refuse to sell to the women, even publicly spitting in their faces.

"They see us laughing, and they don't want us to laugh. They say we are too proud because we have money, because we always walk proudly in the road, but I say, what is wrong with that?" said Mrs Lolosoli.

"This is now our place and we will not run from here," said Nasara Lekutas, as the women sat in the shade of a wide acacia tree quietly nodding their determined agreement.

Ms. Magazine also did a feature on Umoja Village..


"Mnaweza kuzuia katiba leo, kesho, na pia kesho kutwa, lakini wakati utafika hamtaweza kuwazuia wananchi, mpende, msipende...NAK should stop pushing Kenyans into an awkward position because they will resist."

Raila Odinga, reacting on Sunday, July 17, 2005 to news that the Bomas Draft has been dramatically altered

3.0.Nyachae Has Just Sent Kibaki and NAK to the Political Mortuary

There is brazen and then there is brazen. There is outlandish and then there is outlandish. There is incredible and then there is incredible.

In the last two years when, along with millions of other Kenyans I have tried to track the emergence of the NAK ruling clique consolidating itself first around a tribal cabal that has been dubbed the Mount Kenya Mafia and later fanning out to recruit non andu aitu members across the country(Tuju,Nyachae,Biwott, Mwakwere, Kones,Kingi, Awori, Kombo etc) I have watched with gap mouthed trepidation as the back room boys around the Kenyan president moved methodically to tighten their grip on new found power-committing gargantuan blunders along the way. I have written so much on the national constitutional review process that I seriously thought there was really nothing new to add to the heavily covered Bomas Draft.

Some of my contributions date back from as early as the eve of Bomas II in August 2003 to a piece on the Revolutionary Dimensions of Constitutional Change written about a week before the passage of the final Zero Draft in March 2004; to bold projections made at the end of that same month on the day Kibaki reopened parliament which had been preceded approximately a week earlier by a warning about creeping fascist tendencies on the part of the NAK forces and around the same time, an appreciation of the great democratic victory on the day Bomas delegates passed the Zero Draft and a gut reaction critical assessment of the Zero Draft itself. as well as several other essays since then.

Responding to someone on the www.rcbowen.com forum on Thursday, December 18, 2003 at 1:46 in the am EST, I had made the following forecast about Nyachae, Tuju, Uhuru and Biwott and other political realignments:

It would be a mistake to write off NAK, DP or even the so called MKM. They have had the advantage of being in the inner sanctum, controlling the state organs, making the public appointments, in other words managing the patronage machine. Ironically, it is likely expanding its ETHNIC base rather than narrowing it. One or two people may be surprised to hear me say this, but LDP has lost some of its people to NAK. Definitely Tuju and of course Moody Awori. There are many Luo politicians (KANU, Ford-People or Ford-Kenya) who are likely to gravitate towards NAK. Don’t forget that there have been a series of clandestine meetings between senior “MKM” leaders like Kiraitu with some members of this so called Luo elite who want, like Omamo and Ogutu before them, to have an alternative, not necessarily anti-Raila political base in Nyanza.

But I think that NAK’s trump card will be in KANU. Already all the Central Province MPs with the notable exception of Uhuru Kenyatta have practically defected to NARC. So have Muite and Munya in Safina. But the prize pick will actually be some elements of the so called Rift Valley Mafia led by Nicholas Biwott. One of my well-placed informants intimated to me not too long ago that Mukhisa Kituyi is the link man between the RVM and the MKM.

Remember the old schisms in KANU? I do not see Nyachae working hand in glove with Biwott and that is why I see KANU splitting down the middle within a year or so with the Biwott faction going to NAK while the Uhuru faction pursues its agenda with FORD-People.

My own SPECULATION is that the coalition with FORD People is Uhuru’s survival ticket since he has realized that there could be a move afoot to sideline him within KANU. Will a Rift Valley Party be formed? Time will tell.

All factions-LDP, NAK, KANU, and FORD-People need to lure the COASTAL bloc which is increasingly asserting its independence, especially with its announcement that they want to form a political party. LDP has Raila and Balala and Khamisi as their big hitters. FORD-People have their Secretary General, Mwandawiro Mghanga, and KANU has people like Katana Ngala as well as an electorate that may actually revert back to KANU depending on how things change. Karisa Maitha is a political prostitute who is not taken seriously in any camp at the moment and Ali Mwakwere is well, Ali Mwakwere- people know that he can be bought and sold like a gunia of korosho.

As for 2007, well here is my brief take:

1.Kibaki will not be around.
2.NAK will be a hybrid party with the Safina/KANU/LDP/FORD-Kenya infusion.
3.LDP will have a strong pact with FORD-Kenya which will not dissolve. You are looking at a Kalonzo/Kombo ticket with Raila playing the kind of role Kagame played in Rwandan politics- kingmaker without sitting on the throne.
4.FORD-People and KANU will have a strong alliance. You are looking at a Nyachae/Uhuru ticket.

Of course certain elements of the predictions above have proved to be laughably off-base.

My point is that I have devoted a great deal of my time and energy in following, analyzing and forecasting constitutional developments in Kibaki's Kenya.

What I have seen unfolding on the national political scene has been largely a confirmation of many of my earlier assessments with a few obvious misses here and there.

And it is for this reason that I have delved into other topics- ranging from Terry McMillan's closeted future ex-husband to astronomy and nanotechnology.

That is why my first instinct on seeing



another flare up on the constitutional front was to just ignore the whole topic.

The fact that I am jumping in today indicates to me personally a need to comment on a very dangerous precedent that has direct implications for the national security of Kenya in the very near future.

The Kibakites, because of their obsession with myopic selfish victories are placing the future stability of this country at a very severe risk.

Some of those MPs,like

Monsieur Kalembe Ndile swimming happily in the Sun N' Sand Resort swimming pool may think that they are just enjoying themselves in mid July at tax payers' expense by crossing a line here and inserting a paragraph there in what to them is a "contentious document".

What beggars belief is to see the frivolity


that allows a faction of obtuse politicians to fritter away hard won democratic and political gains while frolicking around in a swimming pool at the expense of the same voters that they are so non-chalantly snookering.

Hundreds of Kenyans writing in dozens of Kenyan online forums, editorial, op-ed and letters to the editor newspaper columns have been warning of dire consequences for the future democratic development of this country should parliament, and more particularly the NAK faction, mutiliate the Bomas Draft to protect the Kibaki Presidency and a small clique of tribalists around the head of state.

At the same time, some former democrats and human rights campaigners like Ndingi Mwana Nzeki and Gibson Kamau Kuria have abrogated themselves the dubious roles of the defenders of the indefensible and apologists of the sickening betrayal of the Unbwogable Spirit that swept KANU out of power in December 2002.

On the internet, matters have been reduced to a cacophony of tribal cat calls with one set of anonymous hecklers accusing the other set of being the villains of the piece and what not.

To many cynical observers it is a game, a way to pass away the evening by playing pundit.

To some of us however, we are staring at the prospect of a FULL-FLEDGED civil war.

And for those who are wondering WHEN this war will break out and WHERE, let me just say this:

This war HAS ALREADY BROKEN OUT ALL OVER THE REPUBLIC OF KENYA and threatens to drown this country in a blood bath if current trends of arrogance within the leadership of the country prevail for much longer.

Our problem as Kenyans is that we do not know how to connect the dots.

Every evening those of us in North America for instance, log on to read the news from the following day's newspapers.

But do we connect the dots?

If we did we would ask ourselves the following questions:

Is there any connection between the Marsabit Massacre and the Madaraka protest against land grabbers earlier today(July 17, 2005?)

Is there a connection between the Mau evictions and the Muite led mass actions in his constituency?

Is there a connection between the Cholmondeley murder spree and the Mwandawiro led takeover of land in Taita Taveta a few months ago?

Is there a connection between the lavish renovation of the State House and the civil servants strike?

Is there a connection between the gathering dust on the Akiwumi Report and the resurgence of Digo oathing in the Kaya Bombo forests?

Is there a connection between Kalembe swimming at Sun 'N Sand with the arrest of 6 civil society protestors at the same venue?

Is there a connection between Lucy Kibaki's crime wave and the dismissal of Gladwell Otieno from Transparency International?

Is there a connection between Anglo-Fleecing and the refusal of the G-8 to grant debt relief to Kenya?

Is there a connection between the release of three Mombasa men from a Nairobi court room and the outcry over the US arm-twisting on the International Criminal Court?

Is there a connection between the report of the Ndungu Commission and growing restlessness by squatters?

Is there a connection between a 10 year old child giving birth to a child and the setting up of the Umoja Samburu village?

How much more time does Kibaki, Murungaru, Nyachae, Kiraitu, Tuju, Awori and company have before the dark clouds in the horizon unleash a torrent of hail stones?

Onyango Oloo
Montreal

APPENDIX:

LEGAL OPINION TO THE PSC AND COMMENTARY ON THE LAST PHASE OF THE REVIEW PROCESS FROM THE CKRC

July 2005

Summary of Issues

1.Develop an objective criteria for building a national consensus;
2.Develop an objective criteria for making any possible changes to the Draft Constitution of Kenya (2004);
3.Analyse the Naivasha Accord vis-a-vis the above criteria.

Preamble

The Commission underscores and recognises the need to undertake national consensus on the new Constitution. This has been necessitated by the imperative of establishing a constitutional dispensation that is acceptable to the majority of Kenyans. Towards this end, the Constitution of Kenya Review Act (Cap 3A) has been amended to provide a framework for consensus building.

PART ONE: LEGAL FRAMEWORK FOR CONSENSUS BUILDING

The Constitution of Kenya Review (Amendment) Act 2004 places a responsibility on the National Assembly and the Parliamentary Select Committee (PSC) on the Review of the Constitution to spearhead the consensus building efforts.

(i)Identification of Contentious Issues

In spearheading these consensus-building efforts and identifying contentious issues, the National Assembly will be required to undertake the following:

Receive and consider the Report of the Commission and the Draft Constitution as adopted by the National Constitutional Conference on 15th March 2004.
The PSC will identify and recommend to the National Assembly contentious issues in the Draft Constitution on which consensus is necessary.
The National Assembly, upon deliberation, will approve the list of contentious issues in the Draft Constitution.
Following the identification and approval of the list of contentious issues, subsequent consensus building efforts will be confined to the approved list of contentious issues. This shuts the door on other issues falling outside the list of approved contentious issues. This was designed to immunise the review process from perpetual limbo of contention.

(ii)Building Consensus on the Approved List of Contentious Issues

The Constitution of Kenya Review Act, as amended, provides that in considering the Report and Draft Bill, the National Assembly may undertake consultations to promote, initiate and facilitate a national consensus on the list of contentious issues as approved by the National Assembly.

Although this section uses the term may, this section read together with section 5 of the Constitution of Kenya Review Act obligates the National Assembly to undertake consultations to build a national consensus. Section 5 provides that the organs of the review shall

be accountable to the people of Kenya;
ensure that the review process accommodates the diversity of the Kenyan people;
ensure that the review process -
provides the people of Kenya with an opportunity to actively, freely and meaningfully participate in generating and debating proposals to alter the Constitution;
is conducted in an open manner; and
is guided by respect for the universal principles of human rights, gender equity and democracy; and
ensure that the final outcome of the review process faithfully reflects the wishes of the people of Kenya.

This section does not only obligate the National Assembly as one of the organs of the review to consult, but also defines the parameters, manner and quality of such consultations. This interpretation is based on the principle that the amendment could not have been intended to override the guiding principles of the review which are mandatory.

(iii)Processing the Contentious Issues

The law requires the PSC to conduct wide consultations and make recommendations on the contentious issues to the National Assembly.
The National Assembly is required to debate and adopt with or without amendment(s) the recommendations of the PSC.

(iv) Transmission of the Recommendations of the National Assembly to the AG

The National Assembly is required to transmit the Report of the Commission and the Draft Constitution and its recommendations on the contentious issues to the Attorney General.
Within thirty days, the Attorney General is required to incorporate the recommendations of the National Assembly into the Draft Constitution and publish the same as the proposed new Constitution.


(iv)Approval of the Proposed new Constitution by the People

The amended law under s. 27(3) requires the Electoral Commission to conduct a referendum to give the people of Kenya the opportunity to ratify the proposed new Constitution within 90 days after the AG publishes the proposed new Constitution.

On the whole, this legal framework together with the requirements on the holding of the referendum, raises legal concerns which were referred to in the statement of the Chairperson in our joint meeting with the PSC on Friday the 17th day of June 2005. The statement read in part that:
The Commission would like to seek an opportunity to discuss legal concerns with you so that the two bodies could brainstorm on the possible strategies for protecting the process from any challenge.

We look forward to the opportunity to raise these concerns before it is too late.

PART TWO: IMPERATIVES IN THE CONSIDERATION OF ANY CHANGES IN THE DRAFT CONSTITUTION

In considering any possible changes to the Draft Constitution, it is important to recognise and maintain a healthy relationship between the theoretical framework of values and the architectural design option chosen as infrastructure for the actualisation of those values. Often, a choice of a wrong architectural design option ends up rendering impossible the actualisation of the desired values and may end up reducing those values to mere platitudes. This may also result in a document that has internal inconsistencies and contradictions.

In particular, therefore, the consensus building efforts must respect and take cognisance of the following imperatives:

The Principles guiding the review process as enumerated in sections 3, 5, 17 and the relevant Schedules of the Constitution of Kenya Review Act;
Sections 3 and 17 in particular enumerate the governance values that must inform the new Constitution.
The Philosophy, architecture, and design of the Draft Constitution of Kenya as adopted by the National Constitutional Conference (Bomas); and
The necessity of respecting the basic structure and internal integrity of the Draft Constitution.


In our considered view, disregard of these parameters will not attain a national consensus acceptable to the majority of Kenyans and may lead to further acrimony and division of the country into factions, thus making it impossible to arrive at a legitimate outcome in the referendum, particularly taking into consideration the fact that up to the end of the National Constitutional Conference, the review process had cumulatively built a measure of consensus among the people. The Sulumeti I and II are testament to these efforts. The Sulumeti II, in particular, should be instructive in narrowing down what is in contention in the Draft Constitution. Given this background, it would be necessary to avoid reopening matters in which consensus had been attained at the National Constitutional Conference.

In an effort to build a national consensus, two significant steps have been taken since Bomas:

a)Political leaders representing parliamentary parties as represented in the Select Committee on the Review of the Constitution met in Naivasha in November 2004 and produced proposals to reach a national consensus. This has been documented in a report commonly referred to as the Naivasha Accord. The Commission was represented by five Commissioners, but only as observers.

b)The National Assembly has approved a list of Chapters in the Draft Constitution where contentious issues are to be found.

PART THREE: ANALYSIS OF THE NAIVASHA ACCORD ON THE BASIS OF THE THREE IMPERATIVES

The Naivasha Accord identified several issues as contentious and made proposals on how to resolve them as discussed below:

Chapter 4: Citizenship

a)The Naivasha Accord recommends that the provision on dual citizenship should allow for citizens of Kenya by birth. This recommendation is in agreement with the spirit of deliberations at the National Constitutional Conference.
b)The Naivasha Accord proposes under article 17(1) to delete the words “is entitled on application” and substitute therefor the words “is entitled to apply.”

Background to this provision

The current Constitution of Kenya under section 91 provides:

A woman who has been married to a citizen of Kenya is entitled, upon making application in such manner as may be prescribed by or under an Act of Parliament, to be registered as a citizen of Kenya.


Views of Kenyans

Kenyans felt that this provision discriminates against women and recommended that the right be expanded to include women in order to remove this discrimination. The Commission accepted this recommendation. The Report and Draft Bill (2002) provided in this regard, in article 20 (1), that:
A person who has been married to a citizen of Kenya for a period of not less than three years is entitled, on application, to be registered as a citizen of Kenya.

During deliberations at the National Constitutional Conference, objections to the expansion of this right to cover women were raised on the ground that this provision may be open to abuse. It was argued that non-citizen men would take advantage of Kenyan women [sic!] in order to gain the right to be registered as Kenyan citizens. Upon reflection and negotiations, the Conference resolved that in order to remove the potential of abuse for both men and women, the three years waiting period be extended to seven years.
This provision was, therefore, never identified as a contentious issue in the Sulumeti II Report.

It is notable that the formulation is entitled upon making application, was never contentious in section 91 of the current Constitution of Kenya when the right was only enjoyed by men.

Recommendation: Since the underlying principle of the article is to eliminate sex based discrimination, we take the view that the proposed formulation in article 17(1) should be retained. As such the Naivasha accord proposal should be abandoned.


Chapter 6: Bill of Rights

The Naivasha Accord recommends limitations on some specific rights, namely the right to life (article 34), freedom of the media (article 50) and access to information (article 51). These recommendations proceed from the assumption that the Draft Constitution does not provide limitations to these rights and that they are absolute. This assumption is false because all the rights in the Bill of Rights are subject to limitations as provided for by article 33 of the Bill of Rights.

The Background to the limitation mechanism

The Bill of Rights in the current Constitution has been described as a Bill of Derogations because it grants rights with one hand and takes them away with the other. Comparative constitutional studies informed the Commission that the approach to the limitation of rights is based on an outdated model used in Europe in the 18th century. The European countries that have made and/or reviewed their constitutions since the mid 20th century, have departed from this archaic approach and have adopted a progressive approach which provides rights in separate articles and a single general limitation clause to be observed by any person or institution seeking to limit these rights. This approach began with the German Basic Law of 1949; was picked up by the Canadian Charter of Rights and Freedoms of 1982 and recently, in Africa, by both the Interim Constitution of South Africa of 1993 and the Final Constitution of the Republic of South Africa of 1996. The main difference between the two approaches is that whereas the old approach emphasizes the limitation of rights, the new approach emphasises the enjoyment of rights but recognises that rights are not absolute but are subject to limitations. This approach grants the power to limit rights but recognises that the power to limit rights is itself not unlimited. This approach therefore emphasizes the limitation of the power and the curtailment of arbitrariness. The burden of proof, therefore, shifts to the person or institution seeking to limit that right.

As such, to subject certain rights to specific limitations is to subject them to double limitation. Such double limitation would be in contravention of the objects of the review and the international human rights norms and standards.

Recommendation: The Naivasha Accord’s recommendations under this Chapter are not necessary and as such we propose the retention of the articles therein as formulated. Notably, these recommendations were not contentious issues in Sulumeti II.

Chapter 10: Representation of the People

The Naivasha Accord affirmed the Chapter on Representation in its entirety as not contentious.

Recommendation: We appreciate and support the recommendation of the Naivasha Accord that this Chapter should remain as it is in the Draft Constitution. Its inclusion in the new list of contentious issues by the National Assembly is therefore misplaced and erroneous.

Chapter 11: The Legislature

The Naivasha Accord recommends the scrapping of the Senate in the Draft Constitution. In place thereof, it recommends the establishment of a forum for the leaders of the Counties to meet and deliberate on issues affecting the Counties. The Accord further recommends a process of impeachment of the President by the National Assembly by a two-thirds majority of all members of the National Assembly.

These recommendations proceeded from the assumption that the only functions of the Senate would be the impeachment of the President and the provision of a forum for the leaders of the devolved governments to deliberate on the issues affecting their devolved governments.

In our considered opinion, the Senate is an indispensable and integral part of the basic structure of the Draft Constitution and its removal will undermine the internal integrity, philosophy, architecture and design of the document, thereby fundamentally altering the character and infrastructure designed to actualise the values of good governance in the new constitutional framework.

(i)The Role of the Senate in Devolution

The Draft Constitution has settled for a devolved system of government with government at the national and devolved levels. In this system of government, the legislative function at the national level is intended to be a shared function between the national level and the devolved levels of government. First and foremost, the Senate lies at the very heart of the definition of devolution. One of the main defining features of a devolved system of government is that the governments created at different levels are coordinate and not subordinate to each other. They are coordinate because each one of them derives its authority and legitimacy directly from the Constitution and not from another level of government. None is a mere agent of any of the other levels.

To maintain this constitutional theory and value of being coordinate, the architecture and design demand that the power to alter the instrument from which each derives its authority (the constitution) is shared and not arbitrarily and unilaterally exercised by a single level of government. If this power were not to be shared, the system would have been converted from being coordinate to being subordinate, and, therefore, no longer devolution. This is because the level of government that would have the unilateral power to alter the Constitution would be able through such alterations to abolish the other levels of government. Therefore, the design of a proper system of devolution requires the sharing of this power. In sharing these powers, the Constitution must provide the institutions through which the different levels of government will share these powers, hence the concept of a bicameral legislature.

In choosing a devolved system of government, Kenyans, informed by the current discretionary system of sharing resources, wanted to establish a system with minimised discretion and increased consultation and negotiation. Therefore, the devolved governments are given an opportunity to share in the passing of Money Bills, most importantly the division of revenue Bill. It is the Senate that provides the institution through which the devolved governments share this function. Without the Senate, therefore, we will revert back to the current system of political patronage in the sharing of resources by the centre.

(ii)Electoral Reform and Representation

The Commission received many proposals from the Kenyan people on how to reform the electoral and representation system. Broadly, these views may be classified into two categories: those who proposed the alteration of the first-past-the-post (majoritarian) system because of its inherent unfairness and those who made presentations on the relationship of representation and population on the one hand and representation and region/community of interest on the other. The solution for curing these competing interests was based on two philosophies: one was to balance between the competing interests of those who come from populous communities living in geographically small areas and those who come from less populous communities living in vast areas. The solution to this problem in the Bomas Draft Constitution is to have National Assembly constituencies based on weighted population and a Senate with equal representation based on regions. The Senate takes into account some measure of equality regardless of population and size. The design of the US and South African bicameral legislatures have adopted this principle of equality of States/Provinces in representation in the Senate.

(iii)Public Participation in the legislative process

The Draft Constitution has adopted a philosophy of public participation in governance. This has been done through different structures and processes. The bicameral legislature has been designed to ensure that the people participate in the legislative process directly and indirectly. The Senate would provide a second level for public participation in lawmaking. This is a fundamental right of the people to exercise their sovereignty. Indeed, this is key to the objects and principles guiding the constitutional review process, and its entrenchment would set the stage for a constitutional framework in which the people are primary to the governance process.

(iv)Expanding Representation

In presenting their views to the Commission, the people of Kenya demanded that there should be diversity of representation in the legislature. The Draft Constitution has provided for representation of different groups to this effect in the Senate. The theory of the Senate also seeks to remove the dynamics of party politics in the legislative process, by requiring that election /nomination to the Senate is non-partisan and not based on political parties. This would bring on board some members of Parliament not affiliated to any political party.




(v)Expanded Capacity of law making

It is envisaged that upon the coming into force of the new Constitution, a number of consequential legislations should be enacted to facilitate the realisation of the provisions of the Constitution. It is also envisaged that the legislative agenda under the new constitutional framework will be wider than under the current Constitution. A two chamber parliament provides for lawmaking simultaneously.

(vi) Expanded oversight responsibilities of Parliament

The design of the Draft Constitution has provided for oversight over the governance process by the people through their representatives, namely Parliament. In checking these powers, Parliament’s oversight role has been expanded in the Draft Constitution. The Legislature’s ability to perform this role effectively depends on the design of this institution. The establishment of a bicameral Parliament enhances the ability of Parliament’s oversight by establishing two levels of checks. For instance, the vetting of executive appointments will be subjected to effective checks by requiring that the each of the two chambers is not arbitrary. It is obvious that the amount of vetting by lawmakers expected in the new Constitution cannot be practically and effectively undertaken by one chamber.

(vii) The Impeachment Process

We also hold the view that it is impossible to have an impeachment process with integrity through one chamber of Parliament. The impeachment process is essentially a political and not a judicial process. Comparative constitutional studies show that there are two main reasons why it is political rather than judicial. First, its exclusion from the judicial domain immunises the judiciary from being embroiled in political fights and differences among elected leaders. It is now developed theory that the removal of a popularly elected leader must be undertaken by leaders similarly elected by popular mandate. This is based on the fact that there is real possibility of a sitting President opting to appeal to his popular mandate, which may be only countered by the Legislature which can also appeal to its electorate. The Judiciary cannot and should not step into this political arena and appeal to the electorate.

Second, in granting the impeachment power to the Legislature, the rules of natural justice must be observed. The fundamental tenets of this principle require that one cannot be a judge in his/her own cause, and that one cannot be prosecutor, jury, judge as well as executor in the same case. It is for this reason that in the USA experience, the Chief Justice sits in and chairs the impeachment proceedings in the Senate for purposes of ensuring that the rules of natural justice are observed. This has informed the approach followed in the Draft Constitution. In a presidential system of government, which by necessity, must have an impeachment process, a two-chamber legislature becomes necessary. One chamber is given the role of framing and initiating the charges, while the other chamber tries the charges.

Further, it is also important to note that a momentous political action of removing a sitting President would enjoy further legitimacy by requiring that a qualified majority be attained in two chambers. It is notable that the Naivasha Accord adopts a presidential system, with no clear separation between the Executive and the Legislature. If adopted, this arrangement would undermine the effectiveness and integrity of the impeachment process, should it be initiated, owing to the fact that members of the Executive sit in the National Assembly, and would naturally align themselves with the executive on the question of impeachment.




Additionally, the Senate would

Provide the infrastructure for the actualisation of the values and principles under the Chapters National Goals, Values and Principles, the Republic, Culture and the protection and realisation of human rights in the new constitutional dispensation.
Strengthen the legislative process and rationalise the process of lawmaking.
Enhance the gestation period of lawmaking.
Expand the range, number and quality of legislation.
Provide an avenue for the process of constitutional amendment.
Prevent the potential excesses of a unicameral Parliament.
Provide a principal arena in the devolution and exercise of power.
Enhance separation of powers of the organs of the state.
Safeguard the management of constitutionality.

Recommendation: For all these reasons, and taking into account that the Chapter on the legislature and in particular the Senate was not a contentious issue in Sulumeti I and II, we recommend that the Senate should be retained as an integral part of the basic structure. We note the arguments that have been advanced against the Senate, namely costs, and the complex procedures which may be involved. Considering the benefits of the Senate as discussed above, these arguments are without merit.

Chapter 12: The Executive

The construction of executive power is informed by constitutional theory on systems of government namely the
Presidential;
Parliamentary; and
hybrid (semi-presidential and semi parliamentary) systems.

In a presidential system, the chief executive is both the head of state and head of government, and there is a clear and distinct separation between the legislature and the executive. Under this arrangement, members of the executive are not drawn from the legislature. In a parliamentary system, the head of state and the head of government are separate, with the former playing a ceremonial role, such as the Westminster model. In this system of government, the executive is drawn from the legislature.

The hybrid system of government has two variants: the semi-presidential systems and the semi-parliamentary systems. The semi-presidential tilts executive power towards the President such as the French Constitution whereas the semi-parliamentary system tilts executive power towards the Premier as in the German Constitution. In each of these systems, there are checks and balances designed to suit it and these checks cannot be substituted for the other. The historical context in Kenya is instructional in that the Constitution was changed after independence from a parliamentary to a presidential system, without instituting checks suitable for a presidential system. The upshot wais that the current Constitution has neither the parliamentary checks nor the presidential checks leading to what has been referred to as an “imperial presidency.”

In reconciling the competing views of the people of Kenya, the Draft Constitution has adopted a mixed system of government that takes into account the advantages of all the different systems of government. The Naivasha Accord departs from this approach and proposes a presidential system but does not adopt the relevant and requisite checks and balances. Although reference has been made to the Tanzanian model in the Naivasha Accord by commentators, it has not been pointed out that the Tanzanian model is a purely presidential system, with no checks and balances. Besides, the Tanzanian model, like the current Kenyan imperial presidency evolved from a dictatorial single-party system.

Recommendation: If the Naivasha Accord presidential model is adopted, it must be accompanied by its classical and requisite checks and balances. Prominent among these checks is the requirement for a clear and distinct separation of powers between the executive and the legislature. The members of the cabinet will by necessity have to be appointed from outside Parliament.


Chapter 13: The Judicial and Legal System

The Naivasha Accord recommends that the limitation under article 33(5) be deleted. It further proposes that the words “and submit to the Court’s jurisdiction” be inserted at the end of article 199 of the Draft Constitution.

If the proposals by the Naivasha Accord were effected, Kadhis courts would not only become inoperable, but the accrued rights of Muslims in relation to personal law would have been taken away. The Kadhis courts as formulated in the Draft Constitution (2004) are a result of painstaking negotiations at the National Constitutional Conference between the Christians and Muslims. It was also agreed that the Kadhis courts as an institution are an infrastructure for the actualisation of Muslim women’s rights and part of the gains of women.

Recommendation: The articles should be retained as currently formulated in the Draft Constitution.

Chapter 14: Devolution

The Naivasha Accord proposes that ‘there should be two levels of devolution- the National and County’ and further that the ‘roles assigned to the Regions, the Districts and the Locations in the Draft Bill be brought together to be the roles of the Counties.’

It further recommends that criteria for determining the size and the number of the Counties be developed. At a subsequent meeting of 30th November 2004, it was recommended that the existing 74 districts shall be Counties; and that the Counties may be increased to no more than 100.

In asking for devolution, the Kenyan people demanded a system that would give them an opportunity for participation and self-governance and efficient and proximate delivery of services. They accepted and sought the principle of unity in diversity. In doing this, Kenyans were informed by their experience of the current centralised system of government that is very expensive but delivers no services to them. Against the background of the current system is characterised by a weak local government system with strong central controls, Kenyans demanded a complete overhaul. They demanded devolution and not delegation or deconcentration.

It must be noted that the Draft Constitution of Kenya is a compromise because it provides a “middle ground” between the proponents of unitarism and federalism. It provides for regional governments, with coordinative powers, and the district government as the principal level of devolution.

The Naivasha accord in relation to devolution is therefore a drastic enterprise. The design does not adhere to the principles and objects of devolution. It departs from the views of the people. It violates the principles of devolution such as subsidiarity, public participation and self-governance. It establishes two levels (actually one level, the county) and does not clarify whether the county is a devolved or local government. It creates between 74 and 100 units of government, which is conducive to recentralisation. Indeed, the arrangement is not in any significant way better than the present system. It must also be noted that it is atypical for countries to have such high number of principal levels of devolution. The US is the closest with such a number of levels (54 States). But the US is a vast country, with a population ten times Kenya’s population.

At the heart of the demand for devolution is the need for a system with fair sharing of resources and finances and even development of all regions of the country. The proposed system in the Naivasha Accord will fundamentally impact on the design and principles of the Draft Constitution in respect of a consultative and negotiative system of resource and finance sharing between the governments. As already noted, the architecture and design of the Draft Constitution seeks to minimise discretion and maximise consultation and negotiation in this area. It also seeks to ensure equity and equalisation in the allocation of resources. For purposes of the protection of the devolved levels of government, the design emphasizes the participation of the devolved levels of government in this process. It is for this reason that the devolved levels of government are given two constitutional forums through which to participate in this process, namely the Senate and the Commission on Revenue Allocation. The Commission on Revenue Allocation is designed in such a manner as to give the devolved levels of government higher representation than the national level of government. It has twenty-one Commissioners, out of whom sixteen represent the interests of devolved governments. Each one of the fourteen regions nominates one, and the association of district governments nominates two.

The Naivasha Accord’s proposal to scrap the regional level of government will obviously necessitate the reconstitution of this Commission. This reconstitution will destabilise the balance of interests that had been intended to be in favour of the devolved governments. If the concept of one Commissioner representing each Region is transferred to the 74 or more counties, the end result will be a mammoth Commission. On the other hand, if the route of increasing the representation of counties (since the districts are proposed to be counties) to 16 is taken, the intended balance of interests in favour of the devolved governments will be reversed.

This approach would be susceptible to divide and rule by the centre. When taken together with the Naivasha Accord proposal to scrap the Senate, this proposal is designed to defeat the purposes, object and principle of devolution, taking us back to the discretionary and arbitrary current system of resource allocation.

The proposal to scrap the regional government creates a huge distance between the county level of government and the national government. On the other hand, the scrapping of the locational government also alienates the people from the governance process, yet the people of Kenya had made proposals for governance closer to them.

Recommendation: For all these reasons, the Naivasha Accord proposals will in our considered view fundamentally alter the nature, character, principles and the very definition of devolution in the Draft Constitution. Further, the removal of devolution would alter the basic structure of the Draft Constitution.

Chapter 19: Constitutional Commissions

The Naivasha Accord proposes the scrapping of a number of Commissions in the Draft Constitution and the establishment of the following Commissions in the Constitution:
(a)Public Service Commission;
(b)Parliamentary Service Commission;
(c)Electoral and Boundaries Commission;
(d)Judicial Service Commission and
(e)Commission on Revenue Allocation.

It proposes that some of the Commissions established in the Draft Constitution should be established by or under legislation. In our considered opinion, the Naivasha approach disregards the underlying philosophy in the design of constitutional commissions and constitutional offices in the Draft Constitution. The commissions and constitutional offices created in the Draft Constitution are part of the institutional framework for the implementation of the Draft Constitution. The institutional design of the Draft has expanded the traditional form that creates separation of powers and checks and balances between the legislature, the executive and the judiciary. Informed by the views of the people, our history and constitutional developments in the world over, the design of the Draft Constitution expands these roles of implementation of the Constitution and management of constitutionality to include constitutional commissions and offices.

The approach is that constitutional values and principles are accompanied by constitutional institutional framework that act as infrastructure for implementation of those values. For example, the chapters on the constitutive process of the state have two main institutional frameworks for implementation, namely the National Culture Commission and the Commission on Human Rights and Administrative Justice. By the same token, the Chapter on Leadership and Integrity has the Ethics and Integrity Commission as the institutional framework for implementation. This approach of establishing constitutional commissions as infrastructure for implementation has been adopted throughout the Draft Constitution. Their entrenchment in the Constitution gives them a constitutional basis for the management of constitutionality.

The powers of the legislature, like other organs, have been limited in the Draft Constitution. The Draft Constitution makes the people the repository of sovereignty, and limits the powers of the legislature. The Naivasha Accord proceeds from a different approach by construing parliamentary power as emanating from the supremacy of Parliament instead of the supremacy of the Constitution, and that sovereignty resides in Parliament instead of the people. As such, the proposal that some of these commissions be established by statute is untenable. The intention of the people of Kenya was to create constitutionally protected commissions as opposed to statutory commissions which can be abolished any time hence undermining the management of constitutionality.

Recommendation: Tampering with the institutional design and architecture will strip the Draft Constitution of its effectiveness, infrastructure and ability to manage constitutionality and implement the new Constitution.

Other Matters

The Naivasha Accord alleges that the Draft Constitution is voluminous and as such should be edited, and some of its provisions reduced to legislation. It must be appreciated that the size of the Draft Constitution was neither an accident nor an oversight. It was a deliberate move on account of the needs and fears of the people. Every Constitution is written to respond to the specific felt needs and history of the people and there is no standard size of a Constitution. For instance, the American Constitution, which has been repeatedly cited as very short was written over 250 years ago when the competing interests were still rudimentary and did not include the stakes of the African-Americans, women, indigenous peoples and minorities. Further, it is to be noted that each of the American States has its own Constitution, independent of the Federal Constitution. The Indian Constitution written in 1947 had to respond to the many claims of the time and has 395 articles. Other examples include New Zealand with 284articles, Nigeria with 318 articles and Columbia with 380 articles. The Draft Constitution, having take into consideration our history and the felt needs of the people, has only 311 articles. The Draft Constitution of Zambia, has not only heavily borrowed from the Draft Constitution of Kenya, but has also responded to the needs of its people by adopting 378 articles.
Conclusion

We have set out objective criteria, which should guide possible changes to the Draft Constitution. If these criteria are followed, the end result will remain faithful to the views of the people of Kenya. In our considered opinion, the proposals in the Naivasha Accord fall short of these criteria.