Click Here to Listen to August 17th edition of DUNIA: A tribute to Congolese Dance Maestro, Awilo Longomba; an extended conversation with Colombo based Sri Lankan activist poet Krisantha Sri Bhagiyadatta; additional music by Nairobi City Ensemble...
Initially, I was going to build my latest digital intervention around the
ongoing five day tour of China by our Mtukufu Rais.
Hopefully, this was going to build on my essay from a few months back which had wondered out loud if China had thrown Kibaki an international relations diplomatic life-line, given the frosty tiffs with Kenya's traditional Western "friends".
I was definitely going to weave in some scathing, hopefully appropriately ascerbic barbs to the Chinese authorities about their rather shameless social imperialist designs on African natural resources on a continent they now regard as their "backyard".
Alas,a series of moto moto mabarua pepesi dropped in my virtual electronic sanduku threw me completely out of kilter: there at the bottom of the well was the bulky Kilifi Monster with all the knife and panga wounds inflicted on it thanks to the magic of Microsoft Word's function that allows its users to track all the changes in a document, especially if it is one of those collaborative work in progress group projects. So this is how it looked like, this 295 page testimony to the cynical zeal of opportunis to thwart the painstaking efforts of wananchi to come with a democratic constitution.
My intention was to upload the entire document on to one of the Kenya Democracy Project family of blogs- probably Leta Siasa- but then I ran headlong into a problem circumscribed by two factors- my technical ineptitude when it comes to the migration of electronic documents from one medium to the other-the Composer in Google's Blogger is pretty intuitive and idiot proof and that is the only reason why I can dabble in the dark and not so ancient arts of webgimmickry with some relative ease- the markings on the original document mysteriously evaporated as soon as I had cut and pasted it on to the Blogger's Composer Dialogue Box-or whatever that ka-rectangularish thingy you use to create new blogposts is called... In retrospect that was probably a good thing because when I was peering behind that cyberbox into the html dna/wiring/plumbing I noticed that the codes and the tags id'd the user name of whoever the document passed through- leaving my otherwise confidential sources dead ducks if the document ever made it to the internet. So thanks to my incompetence I am able to protect the cover of a very valuable Nairobi-based source.
In any case the main thing would have been to analyse that Kilifi Changeling. And someone has already done that, as you can see by peeking under this kiunganisho.
With the critical perspectives from that analytical dissection percolating in my snapped awake kichwa, I then started prowling the net looking for different takes on the Kilifi Draft. I had only walked a few steps when I hit pay dirt in the shape of an e-mail dispatched from Nairobi by Mtumishi Orina Nyamwamu that actually forms the running thread throughout the rest of this digital essay.
On my way to this intervention, I passed via the new Kenya Times web site where I was enthralled for a few minutes by a gripping thriller about high ranking drug lords-in the Kenyan parliament and was elsewhere on the net sort of intrigued by Amnesty USA's contribution to the alread entangled Katiba making process.
Anywayz, like I was saying was that what had me even more ensnared was the ricochets of robust views ping ponging across the nets of Kenyan flavoured online forums like Africa-Oped and Kenyaonline largely driven by some of the commentaries in the press about the possibilities of a referendum this coming November.
At first, I wanted to roll up shirt-sleeves and mix it up with the various discussants- but as I read each new riposte and rejoinder I was brimming with things I wanted to say on almost every thread. It did not take me long to decide that the most sober way, for me at least, would be to drink in the back and forth from Deepest Lurkepia (the land of the lurkers of cyberspace) while formulating my own, as always, elongated resonses...
And that is precisely what I have ended up doing.
That is why this essay has the Marxian subtitle, A Contribution to An Ongoing Online Critique of the Kenyan Constitutional Review Process.
Here is how the rest of this blog entry is structured:
We begin by reposting verbatim, the August 12,2005 NCEC statement unleashed by Reverend Timothy Njoya and several others.
Then we reproduce some of the exchanges on Africa-Oped and Kenyonline with two commentaries published respectively in the Standard (Ababu Namwamba) and the Kenya Times (Adong'o Ogony) embedded to bolster the back and forth in those exchanges.
I then follow up with my own extended reaction to the NCEC piece and running commentary on the Africa-Oped and KOL exchanges.
Simple as that.
Na tusipoteze wakati: From: "Gichane Muraguri"
NCEC PRESS STATEMENT TO OUTLINE THE WAY FORWARD TOWARDS A NEW PEOPLE DRIVEN CONSTITUTION AND A SUSTAINABLE REFERENDUM
The National Convention Executive Council (NCEC), the Executive arm of the National Convention Assembly (NCA) Social Movement- has carefully assessed the state of the Constitution Review and the state of the Nation over the last three months. We wish to make known our position as regards these weighty matters. We also wish to share the plan of action we have resolved to pursue as NCA-NCEC from now until the conclusion of the review process. While the country has been made to believe that there will be a referendum to adopt a New Constitution in November this year, NCEC fears that the irresponsible and selfish handling of the review process by the President, parliament and the CKRC to date has fundamentally made this hope distant and shaky.We wish therefore to state as follows:-
That the Country's Constitution review Process is currently precariously hinged on an illegal, illegitimate and unconstitutional Legal and political basis. The Consensus Act which is governing the current process is irrecoverably unconstitutional and flawed. Several cases before the court that challenge the very validity of the Consensus Act remain undetermined. These cases are challenging the validity of the whole process. NCEC rejects the illegal process and the Draft Constitution that is currently being drafted by the Attorney General in liaison with Parliament. Numerous constitutional issues touching on the drafting of the constitution, public participation, the structure and administration of the referendum as well as the transitional mechanisms from the current constitutional order to a new one remain unresolved.
NCEC further rejects the logic being advanced by a group of politicians that whether Kenyans Vote YES or NO for this draft at the referendum, it shall be a win- win situation for their clique. It is odd that President Kibaki and members of this group already know what the contents of this Draft are even as it is being worked on by the Attorney General. This indicates that this process is leading to a rigged Constitution which favours certain undisclosed interests against the will and interests of the nation, the sovereignty of the people and the supremacy of the constitution.
These politicians are misleading the nation on the matter of constitutional review. Having learnt from the Zimbabwe Constitutional referendum experience of 2000, from that of Uganda and other countries, Kenyans should know better than to accept such folly.
NCEC Analysis of the Miscellaneous Application by LDP-KANU members and others
NCEC welcomes LDP, KANU, Katiba Watch and others who misinterpreted the Ringera ruling who have at last seen the significance and essence of the constitutional court ruling as regards the place of the sovereignty of the people and the supremacy of the Constitution in constitution making. They have agreed that the Constituent Assembly and not parliament can make a constitution for the people.
However it looks like part of the intention of the miscellaneous application filed by the LDP/ KANU members is to put Bomas Draft in the referendum (Refer to Page 24 No. 213 and page 27 No. 228).
The Applicants borrow some legal elements from the Court ruling in the Njoya case for use as light legal weapons and ammunitions only to discard them and then revert to their own heavy artillery, the very Section 3, 5, 17, 27 etc and the Constitution of Kenya Review Act Cap 3A (refer to No. 190 to2001) whose constitutional validity the NCEC challenged during the Njoya and others case.The Court ruling in the Njoya and others case is being cited to achieve objectives other than to be governed by it.
Hence, while the NCEC went to Court in a principled manner based on values and beliefs in a principled people driven constitution in the exercise of peoples' sovereignty, the current appellants (LDP and KANU and others ) are driven by the power principle to use every weapon possible, including the use of the NCEC's people driven slogan, to regain their lost ground in Bomas draft.
When two bulls fight, the grass suffers, and NCEC, happens to be the grass, the only genuine political rendering of peoples' aspirations and expectations. The NCEC should not be caught in the crossfire between Pro-NAK factions in the government on the one hand and the Pro-LDP+KANU on the other hand.
The impact of the Osundwa and 21 others Application together with other cases pending before the courts is enormous. In part, these cases may mean that the process having come this far and the Draft Constitution now being prepared by the Attorney General may very well be declared null and void. We therefore urge the Chief Justice to intervene personally to see to it that the cases are determined expeditiously so that the country is given the opportunity to evaluate and determine the proper way to move forward on the Constitution review process.
President Kibaki should lead the way towards establishment of a legitimate review process.
In order to secure the process finally from manipulation by the executive and parliament and from further legal challenges, NCEC hereby calls for the establishment of a legitimate and constitutionally sound review process. The President, Justice Minister Murungi and the Attorney General should, for the sake of the nation, abandon their spirited activism for the Parliamentary-made Constitution which is clearly in violation of the law, the constitution and the rule of law. They should instead facilitate the establishment of a truly people driven review process that respects the principles that were outlined in the Njoya and six others case. These three public officials will eventually be held responsible for the eventualities that may follow the collapse of the constitution review process. President Kibaki must never forget that his pledge to the people was NOT to make a constitution for them but to facilitate the people so that they may make their preferred constitution through constitutional, legal and legitimate means.
The Constituent Assembly as the Feasible Next step and Way forward
In particular the way forward now requires that a National Constituent Assembly be established under the provisions of a new Legal framework. The Constituent Assembly Must be established in accordance to the notions and principles that were spelt out in the Ringera ruling. The Constituent Assembly may be established as the Conference for a Democratic Kenya (CODEKA). For purposes of continuity and sustainability, the Constituent Assembly should within a month of commencing business finalize the drafting of a legitimate draft Constitution using the people's views that were given to the CKRC as well as the Draft Constitution developed at the Bomas Conference. NCEC therefore offers its technical resources to facilitate the effective establishment of the Constituent Assembly to render the enormous task that has held the nation back for about 15 years.
The New draft Constitution from the Constituent Assembly shall form the basis for Civic education. Authentic civic education should be carried out for at least three months and it should be facilitated by Civic associations, membership organizations, other Civil society organizations as well as other legally recognized bodies with the requisite competence. NCEC is opposed to the kind of Civic education that is being supplied by various politicians. We are disappointed that the President himself has taken up the infamous role of a cheer leader for the Bunge-Wako Draft Constitution.
Further, NCEC calls for a genuine and broad based debate on the referendum. The rationale for this demand is that the anticipated referendum has too many issues that need to be dealt with upfront. The ECK, CKRC and the various entities involved in the review process currently do not have the legal and popular mandate of the people of Kenya to deal with the issues of the referendum. The referendum being a constitutional organ of the people of Kenya which touches on the very sovereignty of the people needs a most objective and competent treatment.
We are of the view that the question of the referendum, the administration of the referendum, the participation of the people and the socio-political environment within which it will be conducted remain concerns that the nation has not began to deal with in a meaningful way. Under a genuinely established Review process, a Broad based National Referendum Committee should be established to determine what the referendum question should be. Secondly, the country must debate and agree on what the Unanimity rule shall be. The country should agree what percentage of the voters MUST approve the draft constitution for it to be declared legitimately consented to. Various percentages have been suggested including 51%, 60%, and 65% of the voters. What if only 20% of the registered voters from two or three provinces turn up to vote and the rest of the voters boycott the referendum vote? Will this be a legitimate endorsement that can attract a sustainable consent? What will the way out if such a scenario occurred?
NCEC shall henceforth convene public forums to kick start a national dialogue on these solemn matters.
The environment of constitution making
The environment of Constitution Review is currently poisoned; the country is divided and insecurity, famine, poverty and massive unemployment characterizes the social context within which the Constitution review is been navigated. The country is divided along ethnic, religious, gender, social class, age and regional lines. The Constitution Review has failed to offer the opportunity for the realization of the Vision and objectives of constitution making. [See the Constitution review Act Cap. 3A of 2001 (revised 2002)].
13.A Conducive environment for Constitution making.
NCEC demands that the government, led by the President, should immediately outline a comprehensive strategy on how it will work with the civil society, political parties, the religious community and the international community to secure and level the environment for sustainable dialogue and citizens' participation in civic education and in the referendum. The use of the police to unleash violence on peaceful demonstrators, the continued disruption of Civic education meetings by the police and the insecurity that is currently widespread in the country as was epitomized by the Marsabit killings, are all pointers to a degenerating regime that we fear may ruin the opportunity that constitution making presents countries. President Kibaki's government is now on the spot and the community of civilized nations is watching to see how Kenya shall conduct her delicate review process now in the home stretch.
NCEC sees it inevitable that a General Election MUST be held immediately after the referendum is completed. Whichever way the people of Kenya decide at that referendum fresh elections should be held. If Kenyans accept a new constitutional order, the consequence will be a fresh election to facilitate the election of a legitimate political regime with the mandate to implement that new Constitution. A rejection of the proposed Constitution will on the other hand amount to a vote of No confidence in the NARC government in which case a general election must be held to usher in a government that has the mandate to govern.
The country should hold the elections immediately after the referendum is concluded to ensure that the country is not subjected to the constitutional crisis of being governed by two constitutions concurrently and by a government that has no mandate to implement that same constitution. The NARC Mandate is founded on the current constitutional order. Kenyans did not donate a non-limited mandate to the NARC administration.
Secondly, the election will guarantee that our country effectively makes the transition from the current NARC misrule, chaos and wrangles to a new legitimate and credible government. President Kibaki has attacked and undermined democracy consistently by bringing through the backdoor those politicians who Kenyans rejected in the 2002 General as well as several of Moi's men who looted and plundered the economy. Courtesy of the Kibaki decision to bring these cabal to government on June 30, 2004, The country has largely lost direction on all the most important platforms that NARC was elected to implement including:-
To end official and rampant corruption. To implement a transitional justice process to clean the mess that Kanu had caused, deal with historical injustices and to facilitate national reconciliation and renewal.
To carry the reconstruction of the economy in order create jobs for millions of jobless Kenyans
To institute programmes to advance social justice in the country.
A New Constitutional Order should be presided over by a team that has the mandate and the corresponding characteristics needed to implement that Constitution.
1.Rev. Dr. Timothy Njoya NCA- NCEC Co-convener &
Date: Tue Aug 16, 2005 5:27 am
Subject: On the referendum/Orina
From: "Gichane Muraguri"