Magazine article New African

Will Kenya Get a New Constitution? Is 2010 the Year Kenya Gets a New Constitution? This Question Will Be Firmly Answered in June When, for the Second Time in Their History, Kenyans Will Vote in a Referendum to Decide Whether They Should Get a New Constitution or Stick to the Current One Negotiated at Lancaster House in London 47 Years Ago. Wanjohi Kabukuru Reports from Nairobi

Magazine article New African

Will Kenya Get a New Constitution? Is 2010 the Year Kenya Gets a New Constitution? This Question Will Be Firmly Answered in June When, for the Second Time in Their History, Kenyans Will Vote in a Referendum to Decide Whether They Should Get a New Constitution or Stick to the Current One Negotiated at Lancaster House in London 47 Years Ago. Wanjohi Kabukuru Reports from Nairobi

Article excerpt

IN 1990, TWO KENYAN POLITICIANS--Kenneth Matiba and Charles Rubia--were detained for calling for a new constitution. Since then--for a good 20 years--Kenyans have clamoured in vain for a new constitution; the closest they came to securing one was in 2005. However, owing to political differences it never came to fruition. Today fate appears to have given Kenya another opportunity.

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In November 2009, the Committee of Experts on Constitutional Review released the Harmonised Draft Constitution of Kenya which raised a storm, thanks to its contents. Immediately the draft came out, fears of a repeat of the 2005 debacle resurfaced.

Initially, the Committee of Experts (CoE) won accolades for sticking to a middle road in what came to be called a "hybrid system constitution". It recommended the sharing of executive power by the president and prime minister. However, it was clear that the president, who was to be elected by universal suffrage, would become a lame duck. Indeed, much executive power was bestowed on the premier who was to be elected by parliament. This left the president with mere ceremonial powers.

The real winners in the "Harmonised Draft Constitution" were parliament and the prime minister. Interestingly, soon after the draft was released, the US ambassador to Kenya, Michael Ranneberger, urged the Kenyan government to ensure that the draft was passed. Three weeks later, Ambassador Ranneberger's views were echoed by none other than his boss, Secretary of State Hillary Clinton.

One month after the draft came out, it was subjected to public scrutiny. Over one million people submitted views to the CoE for inclusion in the draft, which it refused to do. The CoE rather sent its original draft to the Parliamentary Select Committee on Constitutional Affairs (PSC), which made significant changes to the document, including the contentious clause on the executive, and sent the document back to the CoE.

The PSC draft won the hearts of many, especially the Christian right, who had rejected outright the "Harmonised Draft" on the grounds that it supported abortion and Kadhis Courts which apply Islamic law. A controversial issue, Khadis Courts have been established on the East African Coast for almost 200 years and were entrenched in the Kenyan constitution at independence in 1963.

However, when the constitutional review process started at the end of the 1990s, the existence of Khadis Courts became the subject of heated debates. In the past, both Muslims and Christians collaborated to lead the call for reforms, but their relationship deteriorated as they disagreed on the status that should be given to the Khadis Courts in the future constitution.

As soon as the CoE received the amended draft from the PSC, it re-inserted the contentious clause on the executive and returned the draft to the PSC for onward submission to parliament for debate. Yet, to and behold, the draft with the contentious clause was passed, with the full support of none other than President Mwai Kibaki and Prime Minister Raila Odinga.

"We have come extremely close to realising one of our greatest collective dreams as a nation--a new constitution," Odinga said enthusiastically. "There have been many turning points in our country and what we achieved this Easter week in our long search for a constitution must rank high among the historic moments," he added.

US President Barack Obama was the first to affirm his support for the draft constitution immediately it was passed at the Easter weekend. Through his press secretary, Robert Gibbs, Obama said: "We urge all Kenyans to focus on the future of their nation and to unify in support of a peaceful and credible referendum and electoral process. …

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