One of Kenya's most resolute and high profile human rights campaigners was arrested on Friday, August 12, 2004 at a land rights demonstration in Kitale. Here is how an online Irish newspaper is reporting it:
Father Dolan is one of the most high profile human rights activists in the Rift Valley province
Priest arrested at Kenya land rights demo
12/08/2005 - 18:21:55
An Irish missionary was arrested for protesting at a land rights demonstration in Kenya, it emerged tonight.
Father Gabriel Dolan, in his 40s, has led a campaign to help squatters regain their right to public land, which was assigned to the cronies of former Kenyan President Daniel Arap Moi.
The human rights group Front Line said he had been beaten and arrested for his work there over the last decade.
“He’s been there for a long time and he’s always been to the fore in defending human rights,” said director Mary Lawlor.
Fr Dolan was born in Derrydonnelly, County Fermanagh and is a member of the Kiltegan Fathers missionary order.
He was arrested today after leading a protest against the grabbing of a public park by a business in Kitale, a small rural town around 330km from the Kenyan capital Nairobi.
The area contains some of the best agricultural land in the country. But it also contains the largest amount of illegally and irregularly acquired public land.
There were hopes that the new Government elected in 2002 would redistribute the land but there has been little progress so far.
Last year, Fr Dolan won a human rights award in Kenya for his work with the Catholic Justice and Peace Commission in Kitale.
The aid agency Trocaire, which supports his work, said it believed the missionary was being targeted.
“They’re trying to get after him mainly because of the communal activities he’s been involved in around justice and the land issue here because there’s been so much corruption around it,” said its East Africa regional director Noel Maloney.
“He in particular has highlighted the issue with protest marches and masses and a lot of letter to the papers.”
In a letter to the local Daily Nation newspaper last year, Fr Dolan wrote that the Government had to stop evicting squatters from public land when they had nowhere else to go.
“A new Government cannot wipe out the poor in the flash of a bulldozer. It needs to restore their dignity and treat them with respect,” he said.
Mr Maloney, who is based in Nairobi, said it was very unusual that the priest had been refused bail today, along with 23 other peace activists, despite putting up money and the deeds to the parish church.
“There’s little bit of worry that he might be PNG’d (persona non grata) out of the country. His work permit and visa would be taken off him and he would be extradited out.”
Fr Dolan is being supported by the Bishop of Kitale, the Irish-born Bishop Maurice Crowley
This is not the first time for Fr. Dolan to be nabbed, mobbed and clobbered by Kenyan police.
*********************************************** 2.0. New National Democratic Alliance in the Offing?
(We want the court to declare):
“That under the Constitution of Kenya there is no constitutional-making authority or capacity in the President of the Republic of Kenya or the National Assembly or Parliament or the Attorney-General to draft , re-draft, write or re-write, publish or promulgate or proclaim a new constitution.”
Joseph Matano Khamisi, William Ruto, Wycliff Osundwa, Adhu Awiti, Mwandawiro Mghanga, Billow Kerrow,Harrison Kombe,Kiema Kilonzo, Gideon Moi, Ali Wario, Reuben Ndolo, Daudi Mwanzia, Charles Keter, Julia Ojiambo,Samwel Weya, Martin Shikuku, Farah Maalim, Apolo Njonjo, Abubakar Awadh, Koitamet ole Kina, Mumbi Ngaru and Ali Mohamed Sumra in a suit filed at the High Court of Kenya in Nairobi, August 11, 2005 before Justice Jackton Boma Ojwang'.
Over the last fifteen years, millions of peaceful patriotic and democracy seeking Kenyans have participated in Kamkunjis, Muorotos, Saba Sabas, Nane Nanes, Tisa Tisas, Kumi Kumis, Citizen Coalition for Constitutional Change workshops and seminars, Faiths-led symposia at Ufungamano, Unbwogable Rallies, Yote Yawezekana Bila Moi Processions, Kura Kwa Kibaki na NARC electoral juggernauts, Bomas I, II and III; Uhuru Park July 2004;Kisumu Streets July 2004; Nairobi, Mombasa, Nakuru pro-democracy demos culminating with Anti-Kilifi Draft 2005 Mass Action- all in the quest for that much sought after Katiba Mpya which will govern Kenya Tuitakayo.
These struggles have been fluid, flexible and diverse-from civil disobedience, to prayer vigils, press statements to militant rallies to the power of the ballot box. One of the things which changed as from the 1990s was the democratic terrain in parliament which was widened by the entry of reform minded politicians who in the past included Wamalwa Kijana, Paul Muite, Gitobu Imanyara, James Orengo, Kiraitu Murungi- those days arrayed against the phalanx of the KANU controlled state apparatus of coercion and intimidation.
The election in December 2002 of a ruling coalition of overwhelmingly pro-reform (or so we thought!) parliamentarians was supposed to make the work of passing a new Katiba as a piece of cake. Most of us, myself included had no reason to doubt that Kenyans would NOT have a democratic constitution by June 2003.
But here we are in August 2005 and none other than Kibaki Tosa himself, the man who was lionized, idolized and slobbered over as the 21st Century Kenyan constitutional messiah is now brazenly announcing that he, the President will personally lead the forces who are determined to impose an even more atrocious constitutional monstrosity on the Kenyan people.
3.0. Somersaulting from Reformer to Counter-Reformer:
The Strange Transformation of Kivutha Kibwana
How times change!
Here is an email I sent to Professor Kivutha Kibwana the day after he was elected to parliament on a NARC ticket:
Date:28 Dec 23:51 (PST)
Subject: What a Great Day for Kenya!!
Comrades and Compatriots:
Let me first send you delirious greetings from Montreal. Emotional wave after emotional wave has been sweeping through me as I drink in the implications of our people's victory over KANU.
Now, I know that other, more high profile people willbe singled out for the accolades; but some of us know that without the seminal work of the 3 Cs and NCEC many of these developments would not take place. So let me thank you from the bottom of my heart for your steadfast often unheralded role in bringing about this historic moment.
Prof. Kivutha Kibwana, congratulations for your lopsided victory in Makueni; Willy, I am sure that we will have more to speak about sooner rather than later...
And here is the Acceptance Speech by
Prof.Kivutha Kibwana on the Occasion of the Ceremony for the Kenya Community Abroad Award For Excellence, 2000
May 24, 2001
"Distinguished Guests, Ladies and Gentlemen
I wish to thank you sincerely for joining Kenya Human Rights Commission and myself to celebrate Kenya Community Abroad's 2000 Execellence Award. I humbly accept this honour as a proxy on behalf of the NCEC [National Convention Executive Council], the youth of Kenya, secular civil society, grassroot activists and many Kenyans who have no voice. I confess I am happy to be a center of attraction and not a radical, hardline, extremist, anti-merger, uncompromising individual. At least for tonight.
It is unfortunate that the constitutional reform process has so far been adroitly used to divide Kenyans. Today political, religious and secular civil societies are more polarized than ever before because President Daniel T. Arap Moi make us compete to give leadership to constitutional reform. That way he dangles a trap we fall into all the time: the mirage of power and glory.
Today I ask: how far have we travelled in constitution making since Saitoti's or KANU's Review Committee of 1990? It appears we have missed or are about to miss the opportunity to comprehensively make our constitution before 2002. It does not also look like we shall level the political playing field through consensus. We have by and large wasted a decade.
Anybody who observes Kenya from a distance will tell you she has collapsed. The economy has. That is why about 60% of Kenyans live below the poverty line. Security has collapsed too. Everyday people are killed by the police or robbers. Recently in Marakwet, Kericho and now Gucha, genocide proceeds without much care or comment from the rest of Kenya. We are getting accustomed to genocide. Infrastructure has also collapsed. Services too. Morality has. Leadership almost has. The current government survives by use of tribalism, ignorance, hand outs and the public purse, propaganda, violence and the public service.
At this juncture Moi seems interested in promoting a proxy successor within a context where he retains leadership of KANU. He is as usual carefully watching opposition moves and blunders before he plays his ace card. And remember Moi does not play his cards close but from inside his chest.
What is the opposition doing or put differently what is the opposition not doing? Some from the opposition have argued: if I can't be the president, why support any other person?; eligible MPs from my tribe must have a presidential aspirant as the wind beneath their wings; I should wait for all other opposition hopefuls to unite under me. And yet Kenyans have been united in their desire for change since1991. In the 1992 and 1997 rigged elections, 70% of Kenyans voted for the opposition.
Is unity impossible for the sake of the masses and our motherland? In 1991 and 1997, short lived unity enabled us to successfully agitate for the repeal of Section 2A of the constitution and for minimum constitutional and legal reforms. What will happen in 2001/2002?
We must now unite so that two forces can exist in Kenya: those for Moi and those against Moi. that is those for the current status quo and those for reform and change. If the reform forces cannot come together within a period of say three months, the question will have to be asked whether we are for or against the people. Unity talks must now be prioritized. We must accept the message: UNITY NOW, CHANGE NOW. We must stop merely talking about unity: we must now do unity.
NCEC views itself as a custodian of peoples' unity. We do not want such unity squandered again. Since the Constitution of Kenya Review Act, 1997 has given a major role for parliament and local authorities in constitution-making, Kenyans must identify single reform candidates in the next elections. They can come from any political party. NCEC is now empowered by its constitution to endorse and support these. Those opposition inclined leaders who have declared an interest in seeking the country's presidency and other reform minded national leaders should urgently sit together. Some of these are Matiba, Kibaki, Nyachae, Wamalwa, Ngilu, Orengo, Muite, Kirwa, Anyang Nyong'o Wangari, Farrah and Mwandawiro. Maybe I will sit with them since the Daily Nation has announced my presidential candidature. I know NCEC will be in the thick of politics from now onwards. 'Every body - including each citizen must become a politician.' The saying 'leave politics to politicians' must now mean 'leave politics to the people, to citizens not just to the professional politician.'
Two routes are possible in terms of constitution - making minimum reforms and sporadic constitutional changes which favour KANU before the next elections or the promulgation of an interim constitution which lays the basis for Kenya's genuine democratization. The second route is possible if reform forces unite as a matter of urgency. After the elections, a comprehensive people driven constitution can then be finalized.
Again if the reform forces and the people of Kenya unite, a transitional government can be instituted with representatives from government, the opposition and civil society. Such a government can halt the current repression, bloodshed, lawlessness, endemic poverty and constitutional impasse. In a word uncertainty. Such a government can begin the task of reconstruction. It can facilitate free and fair elections.
I was personally disappointed by how Ufungamano [a civil society initiative led by the religious sector including the Catholic Church, the Protestant National Council of Churches of Kenya (NCCK), the Muslim Supreme Council of Kenya, and the Hindu Council of Kenya], unfolded. First we didn't grasp a fundamental reality that from the word go the religious community wanted to merge the civil society/opposition process, and the 1998 and 2000 processes. Civil society thought the religious community was prepared, like Moses, to lead the people from Egypt to Canaan. The youth sector in Ufungamano was the most disappointed lot possibly because they have - all things being equal - more years to live in Kenya. I know that donors are being told NCEC incited the youth in Ufungamano to heckle the religious leaders. The youth leaders that I have known including Mungiki youth leaders have minds of their own. In 1997 they rejected the agenda of minimum reforms which I and others supported. We have to dialogue with them. We have to knock and ask to enter their world. Unfortunately it is now a world in ruins. I must say the abrupt collapse of the Ufungamano process made me feel we were abandoned in the middle of the Red Sea with mammoth waves rushing back. I must be forgiven for stating that the hasty merger left me more crushed than the initiation of IPPG [Inter-Parties Parliamentary Group] in 1997. This was so because in 1997 I had been following a political light but now in 2001, I was following a moral light. I apologize if these remarks are perceived as offensive.
I hope that the pro-reform forces will work together to celebrate Saba Saba 2001. Let us consider a countrywide re-awakening in which we remember our dead and commit ourselves to the path of unity, non-violence, and change. Let us build peace, let us start rebuilding prosperity.
I admire the KCA. Kenyans abroad have overcome negative ethnicity for the sake of Kenya. We must emulate them. They are also part of our struggle. They must continue to develop the necessary skills which will soon be needed for reconstruction.
NCEC believes change in Kenya is possible. All of us can genuinely commit ourselves to:
This is the NCEC 10 point plan.
- The making of a new democratic constitution
- Empowering the people through devolution of power
- Creation of a people - centred national econom
- Land and agrarian reform
- Restoration of rule of law and security
- National unity
- Recognition and promotion of basic rights
- Eradication of corruption
- Promotion of affirmative action
- Promotion of regional and international co-operation.
The basic pillars of the new Kenya must be the citizen, the family and communities. The state and its leadership must be facilitators, managers, enablers. They must promote the right of Kenyans to organize their lives through the medium of participation. Perhaps states and governments in Africa should just leave citizens alone for sometime. Our capacities and energies need time for self regeneration and expression.
People of all walks of life - especially the poor and marginalized - must have the opportunity and support to create wealth. Why can't the hawkers hawk in the Central Business District if they can give a plan of how such hawking will not interfere with the business of others? Every Kenyan has a right to produce and enjoy wealth. Those who are not able must also be assisted. We must especially make education, water and health available to all our people.
Foreigners cannot develop us. The primary responsibility for Kenya's sustainable development lies with Kenyans. Part of development is own framing of development agenda, own planning and own mobilization of resources. The money we squander through corruption and waste is more than aid. The more we rely on donor aid, the more we become dependent and unimaginative. We must think for ourselves. We must act for ourselves. Then we'll be respected. Only then can we become a credible player in global politics and the global economy.
We can build a national culture from our 42 or so cultures and those aspects of other cultures that we choose to borrow. Culture is the motor or soul of a people. Culture reinforces one's identity. Culture is a resource. Culture shape the national vision.
Kenya must undergo a moral revolution. We must after about 30 years of authoritarianism begin to learn as a country and society what is right and what is wrong. We need to develop a moral code. We must reinvent religion so that we can live our faiths. To reconstruct a country, you must begin by reconstructing its values. We must now begin to focus on developing the new values of and for the new Kenya.
Before I conclude these remarks, I wish to remember Councillor Richard Kalembe Ndile who is currently in Machakos Prison. His crimes? Conducting Popular or Public Education. Questioning Land Grabbing. Advocating Zero Tolerance of Corruption. Being a Peoples' Leader. Relentlessly Challenging the Status Quo. Empowering the Citizenry. Kenya is beginning to give birth to a new breed of leaders. These are leaders who lead from and within the community. I can begin to visualize the time when NCEC will not be needed. Or NCEC will be taken over and owned by the people. When I associate with some of our youth, I am also able to take a peep into our future leadership and future Kenya.
I wish to pay tribute to my spouse Nazi Mwambura and our four other family members Maureen, Kathleen, Kristopher and Robert alias professor alias the poet. They are a wonderful family. They challenge me all the time as I hope I do.
I once more wish to thank all Kenyans living abroad for the honour they have bestowed upon others and myself. I am happy to belong to the KCA prestigious family alongside Hon. Jim Orengo, a courageous politician and Inspector Joel Kipkemboi Sang, a moral policeman. I wish to thank my teacher Dr. Willy Mutunga and KHRC for being an inspiration and for hosting this event. Thank you all for coming and listening to us.
Let us unite for our people. Let us not deny them the key to change - unity. Let us remember: UNITY NOW, CHANGE NOW."
Post Script: A report in the January 20, 2004 edition of the Daily Nation. followed by a 2003 op-ed on Single Parties, MOUS and the nature of Ruling Coalitions, rounded off by a picture of some of Kibwana's
former Wanjiku's Katiba colleagues in July 2004.
The Cheshire Cat When It Was Grinning?
Will Kibaki's love for Odinga last?
From: Al Kags - email@example.com Wed, Aug 03, 11:16 PM
Either Raila Odinga is one heck of a schemer or one heck of a naive politician. Word around town is that Kibaki is using Raila to push through the referendum in parliament. People who know Raila are wondering whether he has lost his mind. Lets wait and see where this friendship leads.
Over the weekend Onyango Oloo penned an essay inviting the LDP to adopt the chameleon as their new mascot because of what I perceived to be their flip flopping.
Yesterday, one of the most eloquent rejoinders to Al Kags' swali and my own charges of apparent opportunism came in the shape of the following photograph:
(Clockwise: Najib Balala, Kalonzo Musyoka, Raila Odinga and Peter Odoyo)
Maybe we, meaning the Kenyan pundits, did read way too much into the glad-handing camaraderie and bubbling rapprochement that happened in Nyanza when President Kibaki toured that region in western Kenya a fortnight ago.
And of course the first peep at the smoking mirrors was Kibaki's announcement that he was going to boldly lead the "Yes" side to victory in the upcoming referendum, even before Amos Wako had finished drafting the actual document!
Images of William Ruto in lock step with his Alego Usonga counterpart striding to file a civil suit that aims to strike like a wooden stake through the heart of the Kilifi Vampire may perhaps temper somewhat, the giddiness that was flowing like a river of beer spilling from an overturned Kenya Breweries lorry stranded at Ruaraka.
When I was looking at the images from the the three Kenyan dailies, I could not but be struck by the symbolism, which leads me to believe that meetings have been taking place across a wide cross section of Kenyans concerned about the implications of a traversty, a caricature, an abortion of a constitutional process.
There is a de facto Kenyan national democratic front or alliance that is evolving before our eyes- it may not have been so named but at least I can even now, see it emerging from what are still admittedly very crude and somewhat disparate components.
What are these parts?
Well, look at
the pictures and look at the list of names:
In parliament we see an uncertain alliance between the official opposition party KANU and the LDP faction of the National Rainbow Coalition; to that you throw in probably the only principled MP in FORD-People in terms of the constitutional review process- Mwandawiro Mghanga. And even the make up of the actual MPs is very telling- you have MPs from North Eastern, Coast, Eastern, Central, Rift Valley, Nairobi, Nyanza and Western- every part of the country. You have Christians, you have Muslims, you have traditional African animists and you have Atheists; you have men and you have women; you have youthful as well as ageing MPs; you have ministers and backbenchers. Say what you will, there is a broad parliamentary consensus in that make up.
Now look at the
lawyers handling the case. You are not just talking about ethnic and racial diversity. You are looking at ideological pluralism. You have a brilliant conservative lawyer like Mutula Kilonzo who is former President Moi's attorney working in tandem with radical human rights lawyer Pheroze Nowrojee and militant former Ugenya MP James Orengo. The fact that Orengo is representing the LDP speaks volumes of the way in which former feuding forces are putting aside their differences to push for a democratic constitutional dispensation in Kenya.
Then you have the veterans like Dr. Julia Ojiambo, Martin Shikuku and Apollo Njonjo merging forces with civil society upstarts like Koitamet ole Kina.
There are three other allies that are there but not readily apparent.
The fourth contingent are members of Kenya's Fourth Estate. I am sure the individual journalists and editors will demur, preferring to suspend themselves in the animated disbelief that they "are not taking sides." Like I said in another essay, I think that the Kenyan media is highly partisan- which to my mind is a good thing and an added proof that the days of yore when writers and editors had to wait in dread before they could be sure that anything controversial could sneak into the front page.
From the late 1980s of the
Nyamoras and the
Imanyaras and the Gatabakis, the Kenyan media has tended to lean to the democratic side- using their resources to expose corruption, celebrate democratic victories, highlight injustices and give voice to the marginalized communities. This of course has had commercial side-effects of a commercial nature as papers realize that matters political sell more in Kenya than just mere entertainment, sports and other things that I see the less sophisticated Canadian newspaper readership latch on to. Online, the websites of all the Kenyan media outlets are bookmarked by anyone who can identify with the label "Kenyan".
The "fifth columnists" actually comprise the broad sections of the judiciary. In sharp contrast to the nadir of the Moi-KANU years when magistrates collaborated with the secret police in railroading "political dissidents" to prison after hideous kangaroo trials, the Kenyan judicial system, has within its ranks liberal, democratic or even radical magistrates, judges and even state counsels who no longer jump when the executive tells them to. The most prominent example of this trend is of course the Nairobi Chief Magistrate Aggrey Muchelule, but of course there are several other democratic and progressive minded justices- including one or two former human rights and reform minded lawyers who part of the Change the Constitution movement in the 1990s.
The sixth and perhaps most important section is the broad masses of civil society bodies, individual(as opposed to COTU) trade union formations, youth groups, women's associations, traditional and ethno-cultural groupings, small farmer coops, artisans, writers, artists and other cultural workers, who on a day to day basis do hands on work with the Wananchi in ways that are becoming more and more apparent.
For instance during the recent 3 days of mass action this past July against the Kibaki Draft, there was a convergence of interests between MPs opposed to the draft, civil society leaders and spontaneous wananchi who heeded the call to come out and march. Its rural component- the Maasai, Samburu, Dawida and other indigenous groups around the country agitating for land rights and economic justice around natural resources, are potentially the most revolutionary section, depending on how Kenyans organize themselves in the coming months.
The faith-based groups which used to be a bulwark against reaction and produced heroes such
Bishop Alexander Muge,
Bishop Henry Okullu and the
(Reverend Timothy Njoya (right) and Kiriro wa Ngugi leave a Nairobi court on Thursday, February 19, 2004 after the hearing of a case filed by the retired clergyman to have the Bomas constitution review talks halted.)
Rev. Timothy Njoya.
The situation today is slightly more complex and less monolithic: on the one hand former fixtures in the reform movement like
(General-secretary Mutava Musyimi addresses journalists after the Ufungamano group presented a memorandum to Parliament's committee on constitutional review at County Hall on Monday, February 9, 2004)
Rev.Mutava Musyimi and
Archbishop Nding'i Mwana a'Nzeki are firmly in the NAK tent- even though the Catholic umbrella Bishops group is opposed to the process; our good friend Rev. Timothy Njoya with whom we collaborated with very closely when he was in Toronto in 1997 keeps on dithering this way and that away; Father Dolan who was arrested on August 12th continues in the resolute and principled traditions of the late Father Kaiser; the Kenyan Muslim community is firmly in the reform camp; a very disturbing trend is the far right positions taken by the American flavoured newly formed charismatic and evangelical Christian fundamentalist groups. There has been quite frankly an intersection of tribal/regional and ideological agendas as can be evidenced by bizzare anti-Islamic rant by Bishop Kihara Mwangi, NAK MP for Kigumo and the plea earlier today by Bishop Mark Kariuki, the head of the Deliverence Church that Kenyans should retain the present ODIOUS constitution until after the 2012 elections- a call to me which reeks through and through of an overt andu aitu supremacist agenda.
Straddling all of the above forces are members of the Constitution of Kenya Review Commission. It is a well-known fact that Prof. Yash Ghai's replacement, Ms. Abida Aroni is practically a NAK mole in the CKRC- and she is not the only one. I am made to understand that the pro-Kibaki CKRC commisioners are determined to keep wananchi's views on Katiba out of their "civi education" package. Fortunately, her odious anti-Bomas fumes are somewhat tempered by a strong democratic gust from at least 4 other commissioners as you can hear and see from this interview I conducted with them about a week or so ago.
Those of us who are outside the country have been pleased at the growing organic collaborations between Kenyans abroad and activists at home.
Beyond the Kenyan community, we have first, the immediate regional context where many countries- Uganda,Tanzania, Rwanda, Sudan, Ethiopia, Somalia, Eritrea, Somaliland, Mauritius, Seychelles, Malagasy and far off Zimbabwe and South Africa- are very much interested in a future Kenya which is prosperous, dynamic, stable and democratic. Here are to be found potential allies of the emergent Kenyan national democratic movement.
And then you have the funders. Beyond their obvious IMPERIALIST designs governed by naked geo-political strategic imperatives, the donors, especially the Big Three- the UK, the USA and Germany have an investment in working behind the scenes to help create a Kenya where they are comfortable with the political dispensation.
Internationally, the Kenyan democratic movement has yet to forge strong ties with organized expression of progressive humankind world wide-the youth, left, labour, women, environmentalist, indigenous and anti-globalization movement to the extent that is potentially possible.
Sadly, when one glances over to the other side of the divide we see battalions of turn coats like Prof. Kivutha Kibwana, Koigi wa Wamwere, Musikari Kombo, Kiraitu Murungi, Paul Muite and other super stars of the 1990s doing their best imitation of the worst excesses of the Moi regime- and even Moi had gotten over his worst excesses in the closing years of his dictatorial rule. Baba Gideon must these be chuckling at his television set those sides of Sacho as he watches Robinson Njeru Githae trying to out Sunkuli Sunkuli and out Oyugi Hezekiah Oyugi. Wuod Odong'o (as the Luos call him) must chortle when he sees his business partner Simeon Nyachae who quit his cabinet in a huff, now cozying up to some of the most corrupt politicians Kenya has ever produced- the former "activists" of the 1980s and 1990s now in the cabinet.
Of course there are many, many politicians who would swing like the bendera with the upepo no matter who was in power. It is sad to acknowledge that there are contingents within the Kenyan civil society movement who are pro-government for political (as in DP and NAK damu) personal (as I am the niece or nephew of Mheshimiwa so and so) tribal (as in,I really hate Kales,Jengs, Waswahili, Waolalos, Wapwani na Warop) religious (as in I am a Born Again Christian and I fear these Muslims want to impose Sharia law on Kenya), gender (as in I think Bomas gives too much rights to these vihere here wanawake. Kwani ni nani anayetawala nyumbani or ideological (anything that Communist Onyango Oloo supports, I will oppose because I do not want to lose my free subscription to the National Review) and so on and so forth.
The most startling thing for me as a Kenyan who lives abroad is to see the crude return to narrow ethnic identities among Kenyans overseas who grew up in cosmopolitan urban areas with very diverse multicultural communities co-existing side by side. Nowadays if you go to some sites, it is tribal warfare in a way that is not even happening back home. At times like these, I am deeply ashamed of these backward mindsets- especially when I am surfing Kenyan sites with my Moroccan, Egyptian, South African, Zambian, and other friends who also know one or two things about tribalism but are still taken aback by the rawness they see with their own eyes on Kenyan forums.
5.0. Who Will Be The Last One Standing After the Legal Bout?
The battle-lines are drawn.
On Thursday, KANU, LDP and the lone FORD-P representatives put down the gauntlet by launching their legal challenge as you can see by clicking here.
On Friday, the NAK side (which often mistakes itself for the "government" even though there are cabinet ministers, their assistants and other MPs of the ruling camp in the Bomas camp) responded by dismissing their partisan opponents as not posing a threat.
In an early sign of things to come, we learn that all of a sudden, the
Chief Justice is conveniently out of the country.
Another sign is the parameters of the referendum being limited to a yes or no ratification of the monstrosity Kibaki's allies steam rollered through parliament.
So who is going to win the battle?
I suggest that the maturity and autonomy of the Kenyan judiciary is going to face its first major post-Moi challenge in this case. How surgical was the much vaunted "judicial reforms" of 2003? How independent is the judiciary from the executive?
Who is hearing the case?
Is it Justice Ojwang'?
And who else?
Whoever those other judges are, here are some yardsticks:
- What is their fidelity to the principles of democracy, social justice and the rule of the law?
- What is their understanding of the checks and balances between the three arms of government- the legislature is clearly split; the executive is clearly split and the judiciary has some significant players who are sympathetic to the executive.
- To what extent can they make up their minds without factoring in tribal interests?
Some of my political associates in Nairobi shared with me their perspectives earlier today (Saturday, August 13, 2005):
They feel the deciding factor is going to be Chief Justice Gicheru. He makes the ultimate decision on the composition of the bench- which will be at least three. Gicheru widely seen as a Kibaki loyalist, will stack it with hand-picked judges guaranteed to favour the Kibaki-NAK arguments- even if they have a token "independent" to give the fig leaf of fairness. In their view the Chief Justice will ensure that the court challenge is thrown out to pave room for the referendum.
Still, from my optimistic perch in far off Montreal, I am suggesting that the judicial struggle may turn out to be an intensely POLITICAL one. The NAK faction controls the organs of the state and will try and use that to push their side through. However public opinion is firmly against the Kilifi and Kibaki Drafts.
The question is this:
Will the judges hearing this case do the Right Thing?
I am suggesting they should.
The only just verdict is of course to block the infernal referendum until Section 47 has been ammended by a two-thirds majority.
If the judges do not do the right thing but instead, revert back to the Moi era to come down with a Mwai friendly verdict, then the struggle will of course take on the character of an even more militant, widespread revolutionary democratic national uprising, because there is just literally NO WAY the Kenyan people are going to be swindled out of their long fought for democratic constituion.
President Kibaki and his NAK team should understand that they are not just up against Uhuru Kenyatta, William Ruto and Raila Odinga, KANU and the LDP- they are up against the masses of the Kenyan wananchi- inside and outside the country.
If Kenyans sacrificed their lives in Muoroto, Uhuru Park and elsewhere, there is no doubt that the stakes are even higher today.
Of course President Kibaki can exercise real national leadership if he desists from his current cheer leader role and allows the legal process to unfold without executive strong arm pressure.
He should understand that his true allies are actually in what his friends call the "enemy camp"- where you find the majority of the Kenyan people. And in terms of maadui wake, Mheshimiwa Rais, kikulacho ki nguoni mwako... One hopes that the President will discover this simple truth before he is destroyed by the selfish schemes of the Murungarus, Mwirarias, Muthauras, Michukis, Karumes, Nyagahs and Kiraitus.
And yet, it is by no means OBVIOUS that the masses of the Agikuyu, Meru, Embu, Tigania, Chuka, Mbeere, Tharaka and other slopes people actually SUPPORT the Kibaki/Kilifi Draft. One Mgikuyu pal of mine was telling me that a lot of Central Kenyans are worried about the nightmare scenario where the Kiraitus push through this unpopular constitution and at the subsequent elections, the NAK faction LOSES the election ushering in an Imperial President who is not "andu aitu"-possibly opening the door for a lot of angry and vindictive backlash against the so called GEMA communities....
Over and above the foregoing, it is very important for the "Big Tribes" of Kenya- the Agikuyu, the Luo, The Kalenjin, The Kamba, the Abaluhyia- to rethink, redefine and renegotiate their role, their place and their share of national political power vis-a-vis the forty or so other Kenyan nationalities some of which are affliated to the above clusters by history, kinship, commerce, inter-marriage and geographic proximity.
As a Kenyan who comes from TWO so called Big Tribes- the Luos and Luhyias- I became acutely aware of the deep resentment reserved for Gikuyus, Luos, Kales, Kambas and Luhyias by the smaller ethnic groups and other marginalized communities of Kenya when I lived in Mombasa in the 1970s and 1980s. While some of the "watu wa bara" were quite happy to settle in Mombasa, Malindi, Kilifi, Lamu and other coastal towns, we were often not aware how our respective ethnic top elites had left the local wenyeji wa pwani seething with utter resentment.
For instance, my Wagunya and Wa'amu buddies from Lamu District were quite perplexed by the decision of Mzee Jomo Kenyatta to ship thousands of up country, predominantly Gikuyu speaking people into certain parts of Lamu West. To some it felt like ethnic cleansing; to others, a cultural invasion; to others blatant land-grabbing; coupled with the brazen acquisition of beach properties, grabbing of rubies and prime land in Taita-Taveta district by elite members of the so called "Kiambu Mafia" there emerged a very sullen,smouldering resentment against members of the Agikuyu by the Waswahili, Wamijikenda and the Dawidas. In the public and educational sectors of the Kenyan neo-colonial economy, the fact that a big chunk of the top dogs at the Kenya Ports Authority, Railways, Posts and Telecomunications, Power and Lightning, Uhuru na Kazi Provincial headquarters and other parastals were either Luos or people thought to be Luos because of their physical features and names (I could never suppress my amusement when I saw the outrage spreading rapidly over the visage of a Mkisii or Mluhyia wrongly identified or collapsed with those zungas, those uncircumcized Luos because sometimes it is not obvious that an Ouko or an Ogembo could be a Kisii; an Okumu or Ochieng' could be a Manyala or Samia and a Mudhune, a Maina, a Mbogo, a Miguna could all be Luos. Of course to those of us from upcountry we could not understand what the fuss was: were we not Kenyans? Then we could buy land, go to school, marry and work in any part of the republic; besides, as we never tired of repeating to the Wapwani:"Mzee alisema kwamba nyinyi ni wazembe mwakaa chini ya mnazi mukisubiri mpaka nazi iwagonge vichwani."- suggesting that Coastals were lazy who "deserved" to be taken advantage of. That is why many Luos and many Kikuyus were completely shocked when the carnage flared up in Likoni in 1997 with the enemy seen to be Luos and Gikuyus. of course the Karisa Maithas and Omar Masumbukos were following a script downloaded from the Moi State House as KANU mapped its bloody re-election strategy- but those hundreds of Digo youth must have been convinced that this was the beginning of the "Ukombozi of the Wapwani" from "Wabara".
In the Rift Valley,we also saw the Moi regime take advantage of simmering resentment against "outsiders" be they Kikuyus, Kisiis, Luhyias etc to unleash the politically motivated ethnic clashes in the 1990s.
Unfortunately, many of our existing analysis of these clashes have tended to be confined to the electoral politics of a wily dictator. I suggest it is time we confront head-on this ogre called "ukabila".
To me the vexing question of ukabila goes far beyond political appointments for government and other public positions among the various contingents of the pampered Kenyan elite- that is where most of the internet chatter and blather in Kenyan online discussion groups start and end.
Rather, I am much more concerned about the simmering resentments that may in the near future lead to full-scale resource based conflicts between and within regions and ethnic groups- a magnified clash that echoes the North Horr carnage.
What is particularly worrisome to me is how as a nation we Kenyans are going to formulate realistic and sustainable policies when it comes to the exploitation and tapping of natural, agricultural, tourism based income generating opportunties for local communities, specific regions as well as the entire country. Molo, Trans Mara, Likoni, Naro Moru, Kajiado, Laikipia and other clashes underscore the legacy of one sided colonial agreements like the 1900 Maasai Agreement and neo-colonial gerrymeandering and dislocation which is now pitting sections of the Kalenjin against what is widely perceived to be a GEMA dominated regime.
The potential for the kabilstanization of Kenya not in a formal, constitutional way, but rather in a more chaotic Somali stye civil war but this time around, finding the Boranas of Isiolo and Marsabit opting to secede by declaring they have opened a branch of the Oromo Liberation Front in northern Kenya; a revival of an SSSS (Somali Sijui Shifta Secessionist Salvationists); a Maasai uprising; a Nagorno-Karabakh like death duel in the Rift Valley between Kalenjins and Gikuyus; a Republic of Ramogi guerilla movement based in Southern Sudan; a Kaya Bombo II insurrection in Kwale, Kilifi and Malindi districts; an Islamic Jihadist Intifda in Mombasa, Lamu and Malindi towns; a launch in Kenya of a new chapter of the Christian Terrorist outfit Operation Rescue; and I have not mentioned the politcized banditry of criminal gangs that are cited in the Akiwumi Report.
As I have pointed in other essays, there are quite a few tribal based private militias raring to unleash ujambazi wa kisiasa linked to various warlords in the making;one of the earliest blogs I posted on this blog asked the question what we Kenyans could learn from the conflict in Liberia; more recently I denounced the ujinga of ethnic particularism.
Our Kenyan brothers and sisters from the slopes of Mount Kenya- and I am talking of the ones in power- not the ahoi hohe hahe- must be very careful not to repeat the grievous Big Tribe gaffes of the Kenyatta era when some Mzee insiders made many Kenyans believe as is Gikuyu had been declared the national and official language or similar problems during the Moi era when many Kenyans felt as if the national capital had moved to Kabarak.
Almost a century ago,
Vladimir Lenin, the famous Soviet revolutionary-respected even by his ideological foes for his brilliant mind, strategic foresights and tactical prowess warned his fellow Russian tribesmen and tribeswomen to tread carefully in interacting with Ukrainians, Chechens and other nations, nationalitiess and ethnic groups which would later band to form the world's larges and second most powerful super power:
What I am struggling to say is remarkably simple. NONE of the BIG TRIBES can rule Kenya on their own. Not the Luos. Not the Kales. Not the Agikuyu. Not the Abaluhyia and not the Akamba. Kalonzo Musyoka and Charity Ngilu know this. Raila Odinga knows this. William Ruto knows this. Musikari Kombo, Musalia Mudavadi and Moody Awori all know the same thing.
"..The peculiar conditions in Russia with regard to the national question are just he reverse of those we see in Austria. Russia is a state with a single national centre— Great Russia. The Great Russians occupy a vast, unbroken stretch of territory, and number about 70,000,000. The specific features of this national state are: first, that “subject peoples” (which, on the whole, comprise the majority of the entire population—57 per cent) inhabit the border regions; secondly, the oppression of these subject peoples is much stronger here than in the neighbouring states (and not even in the European states alone); thirdly, in a number of cases the oppressed nationalities inhabiting the border regions have compatriots across the border, who enjoy greater national independence (suffice it to mention the Finns, the Swedes, the Poles, the Ukrainians and the Rumanians along the western and southern frontiers of the state); fourthly, the development of capitalism and the general level of culture are often higher in the non-Russian border regions than in the centre. Lastly, it is in the neighbouring Asian states that we see the beginning of a phase of bourgeois revolutions and national movements which are spreading to some of the kindred nationalities within the borders of Russia. Thus, it is precisely the special concrete, historical features of the national question in Russia that make the recognition of the right of nations to self-determination in the present period a matter of special urgency in our country..."
Unfortunately, our Brothers from the Slopes- Muthaura, Murungi, Murungaru, Muthoni and Mwai and others are so drunk with power that they think can cockily launch a GEMA 1000 Year Reich in the year 2005. They are already boasting that the andu aitu team will be in the house for the next 20 years. They should remember Joseph Kamotho's famous last words about KANU's 100 year reign( I am not sure if he is the one who said that though).
Bishop Kihara Mwangi should go easy on the anti-Islamic tirades. Anti-Muslim hatred is like a bad genie that can never be put back into the bottle once unleashed. One of my sources told me that a section of NAK want to use the pro-Christian, anti-Muslim fear-mongering scare tactic of conjuring up the terrifying image of a Kenya government under the sway of Sheria law in order to kill the Kadhi's Courts- to win the hearts and minds of the NAK social based in Central and Eastern provinces.
- Briefly what is likely to happen is this: a pro-government panel will throw out the KANU-LDP suit-even though there are strong and almost unassailable legal arguments;
- A referendum on the Kibaki/Kilifi Draft is called;
- KANU, LDP, Yellow Movement and progressive Kenyans inside and outside the country do a huge cross-country mobilization;
- NO side wins the Referendum vote;
- Kibaki-NAK forces now pull their trump card- claiming country is "too divided and fatigued for Katiba talk" suspend all further constitutional processes- decide to retain present undemocratic constitution to impose a military-civilian MEGA-GEMA tribal dictatorship; dissolve NARC government, bring in more FORD-People and KANU;
- New Kenyan National Democratic Front is launched in January 2006 bringing anti-Kilifi forces together;
- In the meantime middle ranking Kalenjin officers stage a coup in April 2006;
- Military regime hands over to an Interim Civilian authority which calls for fresh elections by October 2006;
- Bomas Constitution is promulgated as the new Kenyan constitution in June 2006;
- November 2006 a new civilian democratic government takes office headed by either Uhuru Kenyatta or Kalonzo Musyoka...
A Preliminary Analysis of The Kilifi Draft
(This document has been prepared by some Kenya-based Kenyans, including SOME, but not all of the Constitutional Review of Kenya Commissioners in July 2005)------------------------------------------------------------------------------------------------------------------
Chapter One: Sovereignty of the People and Supremacy of the Constitution
Article 1 on sovereignty of the people has been fundamentally altered to limit the exercise of the sovereignty of the people. The Draft Constitution of Kenya 2004 (The Bomas Draft) had envisaged the exercise of the sovereignty of the people at the national and devolved levels of government. References to devolved government have been removed and replaced with district government. The concept of devolution has therefore been alienated and abandoned from the word go in the PSC Recommendations/Kilifi Draft. This departs from the objects and values of the Review Act, the views and aspirations of the people and the principles and philosophy of the Draft Constitution of Kenya 2004 (The Bomas Draft). This Chapter was neither contentious nor do the issues fall in the Chapters listed by PSC as containing contentious issues. The Kilifi Draft proposals to amend the Chapter are not supported by the recommendations by the PSC or the proceedings in the National Assembly.
Chapter Two: The Republic
Article 5 of the Draft Constitution of Kenya 2004 (The Bomas Draft) on Territory, which establishes the units of devolution and entrenches them in the Constitution has been fundamentally altered by the removal of the first schedule, which defines and entrenches the regions, districts and boroughs in the Constitution. The power to establish internal boundaries and devolved units of Kenya has now been removed from the people, exercising their sovereignty through the constitution and vested in Parliament through legislation. The shift of sovereignty from the people alters the basic design of devolution as it goes to the very foundation of its definition. Indeed, the concept of devolution ceases to exist in the PSC Recommendations/Kilifi Draft. Whereas article 5 of the Draft Constitution of Kenya 2004 (The Bomas Draft) had defined the number and boundaries of districts and regions, the PSC Recommendations/Kilifi Draft have bestowed this responsibility on Parliament. The grant of this power to Parliament to define and establish another level of government creates a subordinate relationship as opposed to a coordinate relationship between the levels of government.
Article 6 of the Draft Constitution of Kenya 2004 (The Bomas Draft) has been altered by removing the locational and regional levels of government, fundamentally affecting the exercise of the sovereignty of the people. The recommended arrangement not only creates a huge distance between the national and district levels of governments, but by the removal o the locational level of government also takes the government far away from the people, alienating them from the government and governance. Accordingly, the recommended arrangement fundamentally negates the principles of devolution such as efficient and proximate services, public participation and democratic self-government. Although article 6(2) on the principles of distinct, interdependent, consultative, negotiative and cooperative government has been left intact, there are no arrangements and structures for their realisation because the idea of devolution has been abolished and institutional arrangements such as the Senate have been scrapped. The upshot of the recommendations would be to move away from the envisaged consultative and negotiative system of government in the Draft Constitution of Kenya 2004 (The Bomas Draft) to a discretionary controlled system with the national level of government calling the shots. The article remains an empty lofty declaration. These amendments are proposed on the premise that they are consequential matters on devolution. Yet fact is that these articles are principle setting provisions in the chapter on the Republic and as such the PSC had no mandate to effect changes to them as they were not identified as a contentious issue.
The Draft Constitution of Kenya (Bomas Draft) establishes Nairobi as the capital city of Kenya based on the views of the people. The determination of the capital was envisaged as a constitutive function, which should be performed by the people through the constitution and not Parliament. The conferment of the power to Parliament as in the PSC Recommendations/Kilifi Draft negates the sovereignty of the people and runs counter the views and aspirations of the people.
The Hansard record shows that this proposal was rejected by the ruling of the Speaker of the National Assembly on grounds that the PSC exceeded it mandate and that the matter was not consequential. The changes in this chapter are fundamental and not consequential to those in any other chapter. These recommendations depart from the objects and values of the Review Act, the views and aspirations of the people and the principles and philosophy of the Draft Constitution of Kenya 2004 (The Bomas Draft). The Attorney General should ignore these proposals because the Chapter was neither contentious nor was it listed by the National Assembly as contentious.
Chapter Four: Citizenship
Article 17 on citizenship and marriage has been altered by deleting the words “is entitled on application” and substituting therefor the words “is entitled to apply.” Under s. 91 of the current Constitution of Kenya
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.
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 and its 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 s. 91 of the current Constitution of Kenya when the right was only enjoyed by men. Since the underlying principle of the article is to eliminate sex-based discrimination, the proposed formulation in article 17(1) by the PSC Recommendations/ Kilifi Draft is untenable and should be abandoned.
The above arguments apply to the other formulations by the PSC Recommendations/Draft in the Chapter in respect of articles 16, 18 and 20 of the PSC (Kilifi). It must also...
Chapter Five: Culture
Article 26 of the Draft Constitution (2004) (Bomas Draft) on the National Commission on Culture has deleted in its entirety. Whereas the Chapter has laid down basic principles on culture, there is no institutional infrastructure for their realisation. The Commission as envisaged by the Draft Constitution (2004) (Bomas Draft) would actualise or operationalise the provisions of the chapter. The anchoring of the Commission in the Constitution gives it the status to protect the cultural values provided in the Chapter. Besides, the implementation of property, heritage and cultural rights in the Constitution would be rendered nugatory if the Commission has no constitutional status. Additionally, the clause that enjoined Parliament to enact consequential legislation to give effect to the provisions of the chapter has also been deleted thus doing away with the implementation framework. Note that this provision on facilitative legislation would be necessary even if the Commission were to be found unnecessary. Although the National Assembly purported to delete the article, it had no mandate to do so.
Chapter Six: Bill of Rights
The PSC Recommendations have placed 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.
Additionally, there are more limitations that have been added to specific rights such as freedom of the media (article 50). 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 and 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 review and international human rights norms and standards.
Article 34 has been altered fundamentally by arrogating to Parliament the power to grant life and take away life. Yet the theory of human rights and the philosophy of the Bill of Rights in the Draft Constitution (2004) (Bomas Draft) posit that human rights are inherent, indivisible, inalienable and interdependent. Human rights therefore are entitlements by every human person, and are not granted by any external force or power. Parliament cannot therefore purport to have the power to grant or limit the right. By the same token, Parliament cannot purport to “permit” abortion in the circumstances it deems fit by legislation. Moreover, this takes us back to the old approach to the limitation of rights.
On article 36 on affirmative action, the PSC Recommendations bestow on Parliament the power to review affirmative action, which may include abolishing, affirmative action programmes. The theory of the Draft Constitution is that affirmative action is an all time value to be used for adjusting imbalances in society. The recommendations of the PSC are an affront to this theory.
The PSC has also fundamentally inserted a new article designed to undermine the justiciability of socio-economic rights by providing that the basic rights shall not be construed as imposing obligations on the state. In essence, the article seeks to limit the judiciary in its role of progressively interpreting the Bill of Rights, and in particular socio-economic rights. It must be appreciated that the realisation of socio-economic rights and basic rights was at the core of the views and aspirations of the people of Kenya. It must also be appreciated that this matter was not a contentious issue. See article 60 of the PSC/ Kilifi Draft.
Article 71 has also been deleted yet it cannot be understood why a person should issue or obey unlawful instructions. The right should be left the way it is.
Article 74 has introduced three new clauses one of which has made provision for Parliament to legislate on how the courts of law should exercise jurisdiction in cases of contempt. This will undermine the independence of the judiciary and the principle for separation of powers.
The proposals to delete article 75(2) of the Draft Constitution are designed to take away all the rights of persons in custody in the constitution. The removal of this article also confers on Parliament the discretion of determining what rights should be granted to persons in custody. It is to be acknowledged that the rights of a person held in custody are fundamental rights, and this was a major concern of the people during the collection of views. The deletion of the right as formulated in the Draft Constitution (2004) (Bomas Draft) has taken away the entire gamut of rights and freedoms that sought to be protected under the article.
Notably, these recommendations were not contentious issues at the National Constitutional Conference. With the exception of the right to life, the Chapter was never contentious.
Chapter Seven: Land and Property
The theory of government in the Draft Constitution of Kenya (Bomas Draft) is that the purpose of governance is the proper management and development of resources and equitable distribution thereof. As a primary resource, the management and development of land is crucial to the stability of society. It is to be recalled that the use and management of land was a primary concern of the people of Kenya during the collection of the views by the Commission. The people of Kenya considered that in order to address the current problems over the use, ownership, allocation and alienation of land, there should be constitutional provisions on the management and use of land. It was also considered that the state had failed to mange land resources effectively and fairly. It was therefore considered that the management of land should be vested in an independent institution, the National Land Commission. The deletion of the Commission from the Draft Constitution will therefore vest the management of land in Parliament and the Executive.
The Draft Constitution envisages that public land should be administered by the National Land Commission on behalf of the people. Without the National Land Commission there will be public land with no institution to manage and administer. See article 78 and 79 of the Draft Constitution of Kenya (2004). The argument that the Land Commission can be removed on the basis that it is consequential to devolution is erroneous. The National Land Commission was designed to implement the principles on the Chapter on Land. It must be noted that consequential amendments flow from the principle, and as such the ruling on the Chapter on the Environment should be followed in this Chapter. The Attorney General should therefore ignore the proposal to delete the National Land Commission.
Chapter Eight:Environment and Natural Resources
It was considered that the management of the environment should be vested in an independent institution, the National Environment Commission, anchored in the Constitution. The proposed deletion of the Commission from the Draft Constitution will therefore vest the management of the environment in Parliament and the Executive. It is important to note that the Speaker of the National Assembly ruled that this proposal exceeded the mandate of the PSC and rejected the proposal and ruled the retention of the Commission.
Chapter Nine: Leadership and Integrity
The republican theory of government demands that those who hold office do so for a limited period of time and during the pleasure of the people and during their good behaviour. During the National Constitutional Conference, it was argued that the recall mechanism earlier provided in the Draft Constitution (2002) had only targeted Members of Parliament and further that the mechanism was subject to abuse. It was agreed that public scrutiny, through the ethics and integrity infrastructure established in the Chapter on Leadership and Integrity be for all leaders. Architecturally, the Ethics and Integrity Commission would form the cornerstone for upholding ethical standards in the holders of public office.
The Draft Constitution envisages that the Ethics and Integrity Commission will ensure ethical standards in pubic office. The Commission would deal with constitutional offices, and as such it should have constitutional status. It must be emphasised that the Draft Constitution seeks to reorient leadership and governance, and part of the implementing infrastructure is the Ethics and Integrity Commission. The Commission would have several functions, including anticorruption and enforcing ethical codes. The proposed establishment of the Kenya Anti-Corruption Commission runs counter the philosophy of the Draft Constitution which sees anti-corruption as just one aspect of ethics and integrity. To ensure the independence of the Commission, it must be safeguarded in the Constitution. If left for legislation, it would be relegated to a weak institution that cannot enforce ethical standards in public office. The Attorney General should ignore these proposals because the Chapter was neither contentious nor was it listed by the National Assembly as contentious.
Chapter Ten: Representation of the People
The Chapter, which seeks to establish principles for representation of the people has been amended fundamentally by the PSC Recommendations/Draft. The Draft Constitution sought to balance political party interests and other special interests, and adopted mechanisms for ensuring that these interests are represented. Article 102 of the Draft Constitution sought to establish representation of all interests and regions through the Senate. The Draft sought to address the first-past-the-post (majoritarian) system because of its inherent unfairness by establishing 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 and its scrapping has further ramifications in the representation in Parliament. The proposals by the PSC shift representation to political parties, with no clear representation of regional and special interests e.g. workers, women. The idea of political parties as the basis of representation is also discriminatory as it does not give room for representation of independent candidates. It must also be noted that this Chapter was not listed as contentious by the National Assembly.
Chapter Eleven:The Legislature
On article 124 of the Draft Constitution (2004) (Bomas Draft) on the qualifications and disqualifications for election as a member of Parliament, the PSC recommends that persons who have been removed from office on grounds of misconduct should be eligible for election, yet the Bomas Draft had envisaged that to uphold the integrity of Parliament, such persons should not be qualified for election. On membership of the Parliament, the scrapping of the Senate has led to loss of representation of women and other groups that the Draft Constitution (2004) (Bomas Draft) had sought to secure their representation in the parliamentary process.
The PSC has also recommended the deletion of marginalized groups which the Draft Constitution had sought to enhance their protection. The upshot of this is to remove the guarantee of the participation of these groups in the parliamentary process and governance generally.
The Draft Constitution (2004) (Bomas Draft) had envisaged that lawmaking would undergo process of consideration by the two chambers of Parliament before approval. The two-chamber parliament would provide a negotiative and consultative law making process and the scrapping of the Senate and the deletion of the provisions of article 134 on consideration of legislation by both Houses will undermine the requirement for consultative lawmaking. At the same time, the deletion of the provisions on the decisions of the Senate will undermine the principles of geo-equality and unity in diversity. The essence of this article was to ensure checks and balances on decision-making. The deletion of these provisions will therefore render the principle of unity in diversity elusive. All other articles which had provisions on shared functions between the Senate and the NA have been deleted, undermining checks on Parliament.
The design of the Draft Constitution 2004 (Bomas Draft) 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. The sharing of this vetting function seeks to enhance consultation and negotiation in governance, because the composition of the Senate sought to ensure regional representation. The scrapping of the Senate transferring this functions to the National Assembly will undermine the consultations envisaged and the checks intended in a bicameral Parliament. The upshot is that the National Assembly will be all-powerful; in terms of vetting, and will undermine the capacity to vet appointments such as those of the members of the cabinet.
The PSC Recommendations fortify the Public Service Commission, yet it emasculates the other constitutional commissions. Article 147 has been amended to provide that the PSC shall not be under the direction of supervision of any person or authority.
The proposed changes on chapter ten and eleven leave the electoral system intact: the first past the post system. Yet the majority of those who gave their views sought the reform of this system. It must also be indicated that the Constitution of Kenya Review Act required the people of Kenya to review the electoral system.
Chapter Twelve:The Executive
The construction of executive power is informed by constitutional theory on systems of government namely the
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 is 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 PSC Recommendations depart 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 regard to the recommendations by the PSC 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.
On the whole, the recommendations of the PSC deviate from the fundamental principles and the objects of the review. It also deviates from the sovereignty of the people, by seeking to vest sovereignty in the presidency, reinstalling a monarchy. Even though the PSC and political parties subscribed to the Naivasha Accord on the structure of the executive, the recommendations of the PSC do not conform to it.
Article 150(3) has been amended by deleting the provision that the national executive shall reflect the regional and ethnic diversity of the people of Kenya. It must be recalled that the people of Kenya had called for equity in the constitution of the national executive and the proposals in the PSC Recommendations run counter the views of the people of Kenya.
The PSC also recommends a monolithic executive, the President, in whom all executive authority resides. Whereas the Draft Constitution of Kenya (2004) (Bomas Draft) has delegated executive power to the President, Deputy President, Prime Minister and Ministers, the recommendations have concentrated executive power on one institution, the presidency. In addition, it must be noted that the Draft Constitution of Kenya (2004) (Bomas Draft) has sought to establish executive authority at different levels, at the national and devolved government. As such, under the proposed changes, the President will be the repository of ALL executive authority of the Republic, and any other institution exercising executive authority will do so as a delegate or agent of the President. It must be noted that article 1 distinguishes between the executive at the national and devolved levels. Under devolved government, it is envisaged that executive authority will repose in the devolved executive, yet this article vests all executive authority in the President. The recommendations have therefore increased the powers of the President, as the Head of Government and the Head of State, and the repository of all executive authority.
Although the recommendations of the PSC have created the office of the Prime Minister, the office is in essence superfluous as it is fundamentally different from the office of Prime Minister envisaged by article 172 of the Draft Constitution of Kenya (2004) (Bomas Draft). First, the office has not been vested with executive authority as this has been vested only in the President. Second, the office has been granted with no functions, but for the functions currently exercised by the Vice President, namely leader of government business.
The PSC recommends a presidential model with no requisite checks and balances. There is no clear and distinct separation of powers between the executive and the legislature as the Ministers will be appointed from the National Assembly, and some members from outside Parliament. Consequently, the proposed system will still exhibit a higher level of control over the Legislature by the presidency. It must be recalled that the people of Kenya had overwhelmingly supported the idea of a lean government, and had recommended that in addition to limiting the number of ministers, the new constitution should provide that cabinet ministers should be appointed from outside Parliament. The PSC Recommendations have not set the limit of the number of ministers.
On checks and balances, one of the mechanisms namely the impeachment process, has been remodelled by the PSC recommendations as a result of which the process is now an impotent one. The recommendations provide for a unilateral system of the parliamentary process for impeachment as opposed to the one envisaged by article 164 of the Draft Constitution of Kenya (2004) (Bomas Draft), which would be taken through the Senate and the National Assembly to ensure due process of law. Further, checks such as those on the appointment of the Prime Minister under article 173, the cabinet under article 177 and Principal Secretaries under article 181 of the Draft Constitution of Kenya (2004) (Bomas Draft) that envisaged consultation in the appointment (and dismissal) of the holders of these offices have also been removed by the PSC Recommendations.
Finally, the PSC Recommendations also seek to establish the offices of the Attorney General, Director of Public Prosecutions and the Public Defender under the Chapter on the Executive.
On the whole, it must be emphasised that the system proposed by the National Assembly is unlikely to assist in overcoming the culture of authoritarianism. Under the proposals, the office of the presidency would continue to be the focus of elections, the lynchpin of party organization and the fount of all power. Given Kenya’s history, an over–powerful presidency would retard the effective separation of powers as Parliament would become the rubberstamp of the executive and the judiciary would remain subservient to the executive. It would further promote fears of ‘ethnicisation’ as well as personalisation of state power.
Chapter Thirteen: The Judicial and Legal System
The removal of the vetting by Parliament will also affect the independence of the judiciary.
Article 207(2), which provided for the coordination of regional programmes and projects, by the regional governments, has been deleted. At the same time, Article 207(3) which provided that the principal role of the Senate is to provide an institution through which the devolved levels of government share and participate in the formulation and enactment of national legislation and to protect the interests of the Regional, District and Locational Governments has been deleted. Although these are consequential the deletions will impact on co-operative and shared governance as an object of devolution.
One of the objects of the Draft Constitution was to insulate devolved governments from subordination and emasculation by the national or any other upper level of government, this object has been lost by the national government arrogating itself the power to dictate the nature and mechanism of its relationship with the devolved government through legislation. By this new provision the national government can stymie the people’s structures of governance at the local level.
Further, the whole concept of devolved governments being protected from adverse legislation by the national government, by requiring that national legislation has to meet certain objective criteria for it to prevail over devolved government’s legislation on own and concurrent functions, has been turned upside down by the Kilifi Draft proposal that national legislation automatically prevails over district government legislation on concurrent matters. It is also not clear on non-concurrent matters. In effect, this renders the district assemblies toothless and ineffective gatherings in areas where the national government has interests.
In addition, article 210B(2) through which the Senate provided protection to the devolved governments against arbitrary suspension by the President has been deleted and consequently the President may suspend a district government merely on the recommendation of a Commission of Inquiry appointed by him/her. The idea of the involvement of the Senate in this enterprise was to shield the devolved governments, and further provide a second check by the regions through their representatives in the Senate.
The so-called National Forum is unprecedented in devolved systems world-over and cannot be a substitute for either the Senate or the Regional Governments for the following reasons:
why would one call a national meeting of all district governments to discuss a matter between two or more districts in one corner of the country as envisaged by Article 221(2) of the Kilifi Draft;
though a provision is provided for the district governments to form forums, it is a clever manoeuvre to water down the people’s wishes for effective regional governments;
unlike in the Senate where the participation of devolved governments was guaranteed, the idea of the National Forum advising the government is a publicity stunt since the advice by the District Forum is non-binding on the National government with no mechanism requiring compliance by the National government; and
Granting one level of government (through Parliament) the power to solely legislate on matters of enabling another government without that government’s participation, as previously envisaged in the Senate, is a farce and indeed would lead to re-centralisation of governance as it happened after independence. This is real where you have a centralist1 President and Party in power.
Article 219(1) (c), on elections to the district legislature, has been adulterated by the sneaking in of a clause requiring that five percent (5%) of the total membership be reserved for political party nominees. The theory behind nominated members of representative bodies is to bring in the views and voices of those who could not be elected through the majoritarian electoral process e.g. the women, marginalized and minority groups, professionals e.tc. However, it is strange that political parties whose candidates will have been elected directly and form the majority of the legislature would want to muzzle other constituencies through the pretext of special party interests. What are these special party interests that those members of the party elected directly cannot represent? It is a ploy to reward party cronies and induce party worship! Furthermore, the people in their views to the Commission said elections at the local level may not be on a party basis.
The mutilation of the people’s views from the Draft Constitution through the deletion of structures of participatory government at the location level and leaving them at the mercy of Parliament and District Government is most unfortunate. The people in their submissions to the Commission and at Bomas demanded for effective governance and efficient service delivery closest to them. Indeed in some areas they felt that the location was remote to them.
Article 228A (1) that requires that at any time, not more than two-thirds of the members of any assembly, council or executive committee constituted under the chapter on Devolution are to be of the same sex has been deleted.
Article 239 (5) of the Bomas Draft that required prompt transfer of a devolved government’s share of revenue raised nationally without deduction, except when the transfer has been stopped under Article 255(2), has been modified by introduction of the following provision “deductions may be made to offset obligations due to the National Government and default in such obligations would be detrimental to the national interests”. Unlike in the Bomas Draft where the people of Kenya fixed the level of indebtedness of their country relative to the Gross Domestic Product at not more than 50%, the Kilifi Draft gives Parliament the discretion to determine the country’s level of indebtedness.
The PSC Recommendations have scrapped a number of Commissions established in the Draft Constitution (2004) (Bomas Draft) and provided that they be established by legislation. The PSC approach disregards the underlying philosophy in the design of constitutional commissions and constitutional offices in the Draft Constitution (2004) (Bomas Draft). 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 Constitution (2004) (Bomas 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 (2004) (Bomas Draft) 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 (2004) (Bomas Draft). Their entrenchment in the Constitution gives them a constitutional basis for the management of constitutionality.
It must be appreciated that the powers of the legislature, like other organs, have been limited in the Draft Constitution (2004) (Bomas Draft). The Draft Constitution makes the people the repository of sovereignty, and limits the powers of the legislature. The National Assembly 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.
It must be emphasised that by not confining themselves to chapters and issues identified by PSC, PSC Subcommittee violated and exceeded its mandate. Further, the identification of consequential matters was also beyond the mandate of the PSC, as these are the province of the AG in drafting the proposed new Constitution.
1 (adjective) concentrating political power in few hands: the concentration of control, especially political control, in a single authority