Friday, August 12, 2005

Finally Koigi Got it Right On Katiba

By Adongo Ogony

Koigi wa Wamwere, the Subukia MP finally put his fingers on the futility of the fraudulent Katiba

Amos Wako is busy minting in some undisclosed location. I can guarantee you it is in some posh hotel with full services at the taxpayers expense of course.

In an article published in Kenya Times (August 8, 2005) Koigi complains of having nightmares after he voted on July 21 2005 to support the “cut and paste” constitution parliamentarians produced for the new King,

Mwai Kibaki.

Koigi’s nightmare
is not so much that the new constitution from State House wants to impose a perpetual imperial presidency on the people of Kenya and trash the views Kenyans gave the CKRC, but rather that it is essentially an illegal piece of rubbish that will never see the light of day unless our judiciary completely goes to the dogs.

What is Ndugu Koigi’s solution?

He wants the LDP and the KANU MPs who voted against the Kibaki Draft to change their position and come back to parliament not to debate the Draft but rather to change Section 47 of the Constitution to remove the legal quagmire that the Kibaki Draft is sure to face in the months ahead.

“Can a magnanimous LDP and Kanu be bolder, less demanding and more generous to Kenyans by guaranteeing their support to the government when it brings to parliament the bill that will change section 47 and give the country a legitimate constitution whoever wins the referendum?”
this is the question and challenge Koigi poses to his fellow parliamentarians

This is where Koigi misses the point by a mile.

I will come to that shortly.

First, let us look at the problem with section 47. Koigi himself admits being bewildered by the position of our Justice and Constitutional Affairs Minister

Kiraitu Murungi when he told the media shortly after their “great victory” in parliament that there is no need to change section 47 of the current constitution. Kiraitu’s contention was that Kenyans have an inherent right to change their constitution and the present constitution be damned if it gets on the way.

I think Koigi missed on a little piece of information Kiraitu told the media at the same interview. Kiraitu said without blinking that the reason they did not try to change section 47 was because the supporters of the Kibaki constitution could not get the two-thirds majority required to amend that section. In other words as far as Kiraitu is concerned it is not a matter of what is legal nor what is constitutional that determines their actions but rather the numbers. If the government cannot buy enough votes to get the numbers then the law be damned and on to the referendum. That really is the problem Ndugu Koigi. It is not that Kiraitu does not understand the constitution and the law. He does.

The real reason why Kiraitu did not try to ask parliament to change section 47 as they agreed in the equally fraudulent Naivasha Accord is because as greedy as he is Kiraitu could not fathom the idea of real consensus building with the LDP and Kanu that could compromise the constitutional “Bible” from State House. The folks at State House had a fixed mind on the constitution they wanted and a genuine parliamentary consensus would mean give and take not just a sheepish rubberstamping of what State House wanted like the Nyachae fraudsters did in Kilifi.

What happened is that Kiraitu conned his colleagues in Naivasha agreeing to bring section 47 amendment bill with the rest of proposed amendments on Bomas to parliament but as soon as he stepped out of there he simply told them to go to hell. He already had a basic agreement to change the Bomas Draft accepted by all the parties. He knew he would get enough puppets and opportunists like Nyachae, Angwenyi, Tuju etc together with the rest of the mercenaries on sale to do his thing. That is why everything had to be passed by simple majority. If Kiraitu introduced amending section 47 as part and parcel of the deal to amend the Bomas Draft he would have to get two-thirds majority for every amendment on Bomas – requiring real and honest consensus building in parliament.

In short it is Kiraitu’s greed and arrogance that might end up being the saving grace for Wanjiku on the Katiba war. My position has always been that the Naivasha Accord was the greatest danger we faced in the struggle for a genuine people driven constitution. The Naivasha Accord provided a legal framework for the conmen and women in parliament to mess up with the Bomas Draft without any structured input from other stakeholders and they could pretty much have gotten away with it. But mercifully as we all know there is never any honour among thieves and here we are with Wako drafting an illegality that is going nowhere and the president is already promising to campaign vigorously for the same. How ridiculous.


the LDP and KANU have formally filed a case in court to stop Wako’s con job from going to the referendum. That really doesn’t matter. There are already multiple cases on the same pending in court. Those who know anything about constitutional process like our turncoat “people driven constitution” champion

Prof. Kivutha Kibwana are very much aware that the court cases are going to urinate rather heavily on the State House constitution making. The other day I was amused when Prof. Kibwana urged the LDP and Kanu to ask what he referred to as “their proxies” to withdraw the cases in court to ensure smooth sailing for the State House constitution. I say amused because not so long ago the same Kanu people used to refer to Kibwana when he fought on the side of Wanjiku as a proxy of XYZ. Now the same Kibwana thinks human rights activists fighting for a people driven constitution are mere proxies. Good for him.

The bottom line is that the only way the Kibaki constitution sees the light of day is if they can persuade all the 30 or so million Kenyans to agree that none of them will file any case against the Bogus Draft Wako is working on. That is practically impossible and that is why parliament was supposed to insulate the new constitution against litigation by ensuring everything was done according to the law not according to political expediency. They never listened and now they are dancing at their own funeral.

Now to those who say it is unfair to put legal barriers on the Draft after all it is going to the referendum and the people of Kenya will make the choice, I have a few words for you. First of all the forthcoming referendum does not give Kenyans any choice. If they wanted to give us a choice they would have put the Bomas Draft against the Kibaki Draft and let the people decide. Are they doing that? No. Instead we have the Kibaki constitution against the Moi constitution. Both are bad and it is pitiful that some people are telling us the new draft is a slight improvement so we should swallow hard and accept it. That is nonsense. Let me give two illustrations.

Let me ask a simple question:

If someone came to you and asked you to choose which of your two arms you are willing to get chopped off, would you call that a choice? I wouldn’t. Some would say well if I am right handed then may be I have a choice to just get my left hand chopped so that I still retain the right hand. What happens if you bleed to death after your left hand is cut off? Will your right hand still be of use to your dead body? I don’t think so. So asking Kenyans to choose between the Moi Katiba and the Kibaki Katiba to me is like asking someone to choose which hand should be chopped off. It is not anything any of us would do as a matter of choice. We would do it under duress with dangerous consequences and I for one I am having none of it.

Then there are those who say that 80% of what was proposed in Bomas has been retained in the Kibaki Draft and that we should accept it and continue fighting for the remaining 20% that has been watered down. Again I will use the human analogy. Lets say you weigh 200lbs. Then someone comes to you and says look we are going to take only 20% of your body and leave you with the 80% and that should be fine. Would you agree? I doubt it. Why? Because even if say we were to take only 5% of your body and it turns out to be your head that we chop off leaving you with 95% of your body mass, of what use exactly is the rest of your body to you? You are a dead fella my friend and it matters little what percentage of your body mass is available for burial. That is what the constitutional thieves in parliament did. They chopped off the head of the Bomas Draft by mutilating the provisions on the executive and devolution of powers and left us a rotting body (80% or whatever) and they tell us we should consider ourselves lucky we have such a big chunk. Well folks it stinks already.

Now what to do?

First, Koigi should stop dreaming about a solution to this problem coming from parliament. It won’t. They had their chance and blew it because of their greed for power and reckless opportunism as well as the thriving tribal chauvinism under Kibaki. The cat is out of the bag.

The battle for a genuine people’s constitution is squarely in the hands of the people of Kenya. The battle is going to rage in all fronts. In the courts. In the streets. In the polling booths and we will get our new constitution but never under the present regime. Kenyans understand that. We are all waiting for Wako to confirm all our fears and we will take it from there. I am sure Wako will not disappoint us.

The writer is a human rights activist.

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