Will The Kilifi Draft Survive Parliamentary Scrutiny?

Wonders Onyango Oloo



A Kenyan policeman charges towards rock-throwing protesters in Nairobi during the second day of demonstrations against moves to protect the president's powers, July 20, 2005. REUTERS/Thomas Mukoya



"We did not fire even a single live bullet."- Nairobi Police Chief Kingori Mwangi





"The common citizen wants the Bomas draft and a small clique of MPs want the Kilifi Draft," said Nicodemus Nyabwa, a bystander who was caught up in the chaos."This is what has caused the havoc. President Kibaki should give the people the constitution they want."- from the Reuters dispatch



"They are just looters, idlers, thieves and time-wasters throwing stones. It's just stupid people. We cannot leave now or go about our duties," said Vicki Lucas, a pharmacist locked in her store with about 10 other people-from the Reuters dispatch

"By assenting to the new constitution after it goes to the referendum, the President will be committing treason, having sworn to uphold the current Constitution in view of Section 47."

Kalonzo Musyoka, Cabinet Minister and potential LDP Presidential candidate speaking in the Kenyan Parliament on Wednesday, July 20, 2005

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The images from today's running battles between the police and the pro-democracy demonstrators (and the fair sprinkling of opportunistic hooligans, state sponsored agents provocateurs and curious political tourists) are vivid enough. The press reports in our local dailies about what happened in Nairobi as well as Mombasa and Kisumu are thorough enough. The extensive coverage from the international media outlets like VOA, BBC, Al Jazeera CNN and Tehran Times boosts and complements what Kenyans will be reading later today when they purchase their daily newspapers(or simply crane their necks in the mathrees to "borrow with their eyes",someone else's copy-to the mild chagrin of the irritated owners who may or may not snap shut the gazeti, flinging a dirty look at the snoopers).

Personally, I think the Reuters dispatch by C.Bryson Hull was one of the most extensive, detailed and fact based and therefore, gets my vote as the the top reporting on the day's events. You can augment that report by watching these video images from Reuters.

Yours truly (who dabbles as a radio programmer here in Montreal) managed to get into the mix with this minor scoop involving a live interview with

Njuguna Mutahi of People Against Torture (and also the younger bro to the late "Whispers") who was actually in the thick of the mass action on both days. His account gives one of the earliest confirmations that the Kenyan police were brutalizing innocent protestors with a severity that surpassed the previous day's crackdown.

Apart from the foregoing, I want to refrain from commenting further on what went down on the streets of Nairobi, Mombasa and Kisumu on the second day of the mass action for a democratic constitution- the visuals, audios and texts above serve as very eloquent and compelling testimony.

Instead, I want to turn my attention to what was happening away from the streets, inside the heavily guarded(even though Speaker Francis Ole Kaparo pointed out quite sardonically that he did not ask for such heavy police protection) Parliament building.

I have seen pro-NAK naysayers and some Nation scribes carp about the fact that KANU and LDP legislators showed up in parliament instead of staying in the streets.

At the superficial level, even if you ignore the jaundiced eyes, there appears to be some merit in this accusation against the anti-Kilifi Draft MPs.

On closer examination however it falls flat.

In the first place, it is inaccurate to say that there were no KANU and LDP MPs in the streets.

An article in the July 20th edition of the East African Standard informs us otherwise:

"...Outside Parliament, several Kanu and LDP legislators were seen criss-crossing the streets towards Haile Selassie Avenue to meet the protestors.At one time MPs Musa Sirma and Peter Owidi engaged the police outside County Hall demanding to know what they were doing there."Why don’t you go to keep peace in Marsabit District instead of coming here to harass members of the public?" asked Sirma.But the policemen only smiled back and the MPs walked towards the Professional Centre before they were joined by others..." SOURCE.


In any case, that is hardly the point of this essay.

What I want to achieve in this digital intervention is a very simple task:

To show how democratic forces can combine legal and illegal, parliamentary and extra-parliamentary, overt and covert forms of struggle to achieve immediate and long term political objectives.

By doing this I hope to demonstrate that what is happening inside Bunge right now is just as crucial as the street protests that have led to running battles with the makarau for the last two days.

In my opinion, one of the things that the NAK parvenu schemers was HOPING and PRAYING fervently for was a boycott of parliament by all the MPs opposed to the Kilifi Caricature Draft. How easy would it have then been for the Kibakites to achieve two propaganda objectives:

One, portray the leadership of KANU and the LDP as reckless "ring-leaders" organizing "looters" and "hooligans" in the streets to disrupt public order and endanger "national security". It is a short step from here for Kibaki to begin signing detention orders for politicians he considers a threat.

Two, the absence of the opponents of the Kilifi "Strange Document"-as Raila Odinga referred to it- would have guaranteed plain sailing in what would have been for sure a mockery of a "debate"- in much the same way that Mwai Kibaki, as the then KANU leader of House Business moved the motion to declare Kenya a de jure one party state way back in 1982.

If this is what the Nyachae,Awori and Kiraitu were banking on, then they must have been severely downcast with suppressed disappointment.

The initial attempt to block the tabling of the Kilifi Document failed when

Speaker Francis Ole Kaparo ruled that the wabunge could jadiliana even though it was not exactly clear how the mswada would be framed to comply with the taratibu of parliament:

Speaker allows debate on review to continue

By Ben Agina

Speaker Francis ole Kaparo yesterday allowed debate on the constitutional review to proceed, overruling a petition tabled by Eldoret North MP William Ruto.

Ruto — on the strength of a petition he said was backed by a million Kenyans — had wanted debate on the draft constitution postponed until a case pending in court is heard and determined.

The former chairman of the Parliamentary Select Committee on the review had asked the Speaker to use his powers to stop any debate under the Consensus Act, which is the subject of litigation in the High Court.

Ruto, who took the Government side by surprise and was cheered as he read out the petitioner’s demands, said the signatures he brought to the House were 5,000 and police had impounded others as they were being brought to the House.

Making his ruling, Kaparo said the constitutional review had gone through a very rough terrain since the agitation for a new constitution begun.

He said the Constitution of Kenya Review Act was among the most highly amended Acts of Parliament.

It had been amended to an extent that one could not recognise its original shape, he said.

Kaparo blamed the stalemate on the process to shifting political expediency and loyalty.

He reminded members that during the Eighth Parliament, MPs had said they did not have powers to make the constitution.

"You did convince Kenyans that you cannot make the constitution and they agreed with you," said Kaparo.

It was then that the review was taken to Bomas. He urged MPs to be consistent.
-East African Standard Thursday, July 21, 2005

The key paragraph in the above story is this one:


"Ruto, who took the Government side by surprise and was cheered as he read out the petitioner’s demands, said the signatures he brought to the House were 5,000 and police had impounded others as they were being brought to the House."

The Daily Nation, in their coverage quote Ruto as saying:

"The petitioners are appealing to the Speaker to use his constitutional powers together with House Standing Orders to immediately stop debate on the Act forthwith, until the legality and constitutionality of the Bomas Draft is concluded in the High Court."

That was a very deft move on the part of the Eldoret North MP. As each day passes by, it would appear that KANU in opposition is learning very fast how it can transform itself from a blood-soaked instrument of repression and state violence into a vehicle to articulate the national democratic aspirations of the Kenyans who were being clobbered at the express behest of the former "reformers" in the government ranks. The mere act of "smuggling" those 5,000 signatures to parliament and reading out loud the demands of the participants in the mass action(remember this is what Koitamet Ole Kina was clutching when he was arrested on Tuesday?) provided an organic bond between the opponents of the Kilifi Draft in parliament and those on the streets.

And to hear a whole cabinet minister, Kalonzo Musyoka rising up and telling his own boss, Mwai Kibaki the following:

"By assenting to the new constitution after it goes to the referendum, the President will be committing treason, having sworn to uphold the current Constitution in view of Section 47."

Was nothing short of a bombshell from a fretting, anxious beleagured regime that has tried to use every arm-twisting strategy in the book to force the "government side" to fall in line
behind its draconian mutiliation of the Bomas Draft.

One can only imagine that Raila Odinga's pointed description of the Kilifi Draft as a "strange document" was not a spontaneous outburst, but rather part of a more elaborate




Aikido move against familiar ideological adversaries within the NARC cabinet.

The NAK side may be confident that they have the numbers on their side- they convinced 113 MPs to show up at Sun 'N Sand for a little bit of political swimming conversations.

However, did anyone notice this ka-little wrinkle tucked almost at the end of the Daily Nation story:


Moments before opening the debate, Mr Nyachae held a lengthy discussion with Vice-President Moody Awori, Government chief whip Norman Nyagah, Education minister George Saitoti, Justice and Constitutional Affairs minister Kiraitu Murungi, and Foreign Affairs assistant minister Moses Wetangula. They met in a room just behind the Speaker's chair, where Mr Nyachae complained of some alterations to the report by his committee that he had tabled in Parliament on Tuesday evening. He raised fears that any alterations would not only demean him as the chair of PSC, but would cast doubt on the integrity of the report. But Mr Nyagah, Prof Saitoti, and Mr Wetangula assured him that the changes were due to typographical errors, and would be corrected on the floor of the House...

Is Mzee Nyachae smelling a dead panya?

Is it possible that the mutiliated draft had been further savaged behind the butcher's(Nyachae) back?

In any case, how is the NAK side hoping to counter the following gambit by KANU:

"We have already notified the Speaker about weighty matters of procedure that were overlooked when the chairman of Parliamentary Select Committee, Simeon Nyachae, tabled documents on constitutional draft on Tuesday," he said.

He said Nyachae’s papers could not be described as they did not constitute a Bill or a sessional paper, hence debate on the draft constitution could not be allowed to take off. Ruto explained that had it been a Bill, the procedure required it be subjected to First and Second Readings and then allowed to mature over a specified period before members debated it.

On other hand, a sessional paper was not subject to amendment once it was tabled before the House yet Nyachae had indicated the draft before the House was subject of amendments by MPs.

"We feel strongly that in order to maintain the dignity of the House we as Parliament must lead by respecting the structures that govern debate by taking into consideration the provision of Standing Orders," he said.

Ruto said the House could not consider debating the report by Nyachae until Parliament complied with the advice by Attorney General to put in place proper legal structures.

That included the amendment of section 47 of the Constitution to govern debate on the draft because the current law does not allow Parliament to write a Constitution for Kenyans.

Again the House should amend section 42 (a) to allow the Electoral Commission the power to conduct a referendum on the draft.- from the East African Standard, July 21, 2005

Having studied all the major mainstream parliamentary players- NAK, LDP, KANU- I would like to suggest that it is still a toss up as to who will emerge the "victor" in this cat and mouse game. The Kibaki forces may yet unleash a still unidentified tactical missile from their arsenal of undemocratic dirty tricks; the wily LDP may pull a strategic shocker and KANU may dig deep into their vault of 40 years of statecraft...Who knows?

And of course, the mass actions are bound to impact DIRECTLY on these parliamentary deliberations.

Even the Murungarus, Michukis and Kiraitus in all their arrogance can not ignore the fact that all over the world Kenya is seen as the east African country whose government chose to deploy crack paramilitary forces to thwart the peaceful expression of democratic dissent rather than deploy the same troops to Marsabit where real insecurity precipitated at least two massacres. Despite the braggadocio chest thumping, Mwai Kibaki and his sidekicks are painfully aware that they still crave that debt relief shot in the arm-something highly unlikely to happen in the current climate of political instability, grand graft, insecurity and creeping repression.

The other day, a pundit writing in www.rcbowen.com offered the following theory as the motivating factor behind Nyachae's cooperation with the Kiraitus:

RE: A Hail Storm Is Visiting Us Soon...
In response to A Hail Storm Is Visiting Us Soon... posted by Onyango Oloo

From: Bunduki - Mon, Jul 18, 1:28 AM

Very interesting analysis, Onyango Oloo. But here is another angle to Nyachae's brazen and arrogant mutilation of BOMAS Katiba. Could he be setting up MKM against the masses? I mean, he too wants to be president, right, not just to be Kibaki's handmaid. Why would he want to consolidate MKM's hold on power while ignoring his own ambitions? In fact, in 2002, he refused to support Kibaki for the presidency. Why do it now?

So, assuming that Nyachae still has ambitions to be president of Kenya, as all politicians do, what better way to do that than to provoke the masses to rise up against MKM by brazenly mutilating the BOMAS Katiba, force an early election, and hope for an early shot at the presidency in an alliance with Uhuru Kenyatta's KANU? Wasawhili walisema: kikulacho humu nguoni muako.

SOURCE.

Sounds very interesting, but I did beg to differ from this analysis.

My own take on Nyachae is that throughout his public career as a civil servant and a politician, he has always been an Establishment Man who supports the status quo. I did have a chance to converse with him when he visited Canada briefly in the year 2000 on his way to the United States(accompanied by James Orengo) and he struck me then as an avuncular, straight shooting figure who likes to play by the rules. It has been a head scratcher for me, trying to fathom why he picked up the thankless PSC gig knowing what kind of an untenable position he was going to box himself into. However, the key to understanding his motivation is his comprador bourgeois class position. Not many realize that even when he fell out with Moi politically and had to leave the cabinet, he still remained a very close business associate of the former head of state. I would argue that Nyachae's entry into the Kibaki government was first and foremost a BUSINESS decision to protect his assets and reward his "boys" who had been very loyal to him in wresting control of FORD-People from the hapless Kimani wa Nyoike. I am sure Simeon Nyachae realizes that he probably lost his one chance to become President in 2002 when he insisted on his Lone Ranger strategy. Advancing in years, beset by failing health, Nyachae may have perhaps decided to stick with what he does best- support the government of the day whether it happens to be the colonial, Kenyatta, Moi or now, the Kibaki regime. His "boys"(yes FORD-People is predominantly a testosterone heavy outfit) need to fly a few ministerial flags ama? Here is my alternative conspiracy theory which is totally speculative-like all good conspiracy theories. Perhaps, Nyachae is arguing, this Kilifi Draft is so bad that it will finally force the LDP to resign from the NARC government, opening up several cabinet and assisant ministerial opportunities for the small FORD-People caucus. Back home in Kisii, Nyamira and Gucha districts, Nyachae can regain a lot of his former clout by posing as the uber-deal maker of the Abagusii community. But like I said, that theory is wild and unsupported by any empirical evidence, ok?

Still the question persists:

Will the Kilifi Draft survive close parliamentary scrutiny?

Who knows?

As for me, I think the question may turn out to be rather moot.

In 2002 Moi and KANU were soundly trounced by a mega-coalition of forces that used the same undemocratic constitution to derail the Uhuru Project.

One of the things that may shock the NAK forces is that the very Presidential system that they are trying to consolidate(after vociferously opposing it when Moi was President those yumba yumbaring spineless opportunists!) could be their very worst nightmare if their political rivals decide to call their bluff and engage them at their own game. Think about it:

Even if the Kilifi Draft passes, eventually the Kibakites will be forced to face the electorate.

Unfortunately for them, they did not bother to invite Wanjiku and those other millions of wananchi to Sun 'N Sand recently.

More seriously, I believe that constitution making is not confined to resorts and cloistered parliamentary chambers.

Rather constitutions are by and large the outcome of protracted democratic struggles.

In order to have Bomas I, II and III, Kenyans had to go through Saba Saba, Nane Nane, Tisa Tisa Kumi Kumi, Unbwogable Spirit, Rudisha Kila Kitu and Yote Yawezekana Bila KANU. At each and every step of the way the ruling elite- in this case the Moi-KANU dictatorship- fought the wananchi viciously. The heavy police presence of today is deja vu to a whole bunch of veterans of the Change the Constitution movement.

What has changed is that the current ruling elite are defectors, sellouts and traitors from the same Kenya Tuitakayo forces who blazed a trail in Kenya from the mid 1990s.

The same rules of engagement apply between rulers and the ruled:

The ruling elite will fight tooth and nail to maintain the status quo-or tilt it even further in their favour.

The wananchi, whose only reliable weapon is solid, mass based superior political organization realize that time, a very precious factor in this equation, is on their side.

And it is for this reason that I can confidently declare as I close:

One day, the Kenyan people will roll the Kilifi Draft into a crumpled heap and fling into the nearest trash can as they seek a truly democratic future.

When will this come to fruition?

Well, my name is Onyango Oloo- not Sheikh Yahya Hussein, the Bagamayo-born East African seer, astrologist, palmist and all round mpiga ramli.


Onyango Oloo
Montreal