Tag Archives: constitution

Kenya’s Speaker Marende Makes Key Ruling that Kibaki Nominations for Chief Justice and Attorney General Do Not Meet Constitutional Requirement

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With Marende’s eventual determination that Kibaki must further consult his coalition partner, Prime Minister Raila Odinga, the effort to circumvent the potential ICC prosecutions for post election crimes against humanity has met a setback. Marende has once again proven to be Kenya’s indispensable governmental authority in the absence of a will or ability of the coalition “principals” to act in concert.

Kenya v2.0 or 1.3?

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A week after the big party, several thoughts on where Kenya stands with the new constitution.

First, I do think the successful referendum and passage of the new constitution is consequential in itself. Kenyans got to make up their minds, go vote, and their votes counted. This process can work in Kenya.

In this sense, the Government of National Unity has carried out one of the core functions under the original post-election agreement from 2008 and compared to how things looked in December of last year when I started this blog, the GNU has made a better account of itself not so much for affirmative acts, but for letting the process established work.

These things said, the Constitution provides an outline of the “functionalities” needed for a “Second Republic”–writing working “code” to execute these in practice is the work at hand.

While the passage of the Constitution itself is a long-awaited breakthrough, I did chose to quote in my “historic day” post from the Standard article noting the highest expectations since the election of the NARC ticket in 2002 with full appreciation for the cautionary tale to be had from looking at how those expectations were dashed. Right now the new Constitution is a milestone; what else it will be is to be determined.

A new Republic with require people as well as systems. Right now, we have in Kenya the same people in political power. Their judgment is reflected in the how they managed to taint the celebration of the accomplishment of the country in passing the new Constitution. Apparently the thinking went like this: “We are having a picnic. What is a picnic without a skunk? Let’s invite Bashir!”

Historic Day as New Constitution Ushers in Kenya’s “Second Republic”

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Dropping in
The Standard: Kenyan’s Hopes Highest Since NARC Victory

By ALEX NDEGWA

As Kenyans celebrate a new Constitution that radically improves governance, hope is growing with a survey suggesting the high level of optimism is highest in seven years.

An overwhelming majority (77 per cent) is optimistic about the economic prospects in the next 12 months following the promulgation of the new Constitution by President Kibaki, this Friday.

Such high level of optimism was last recorded in April 2003, four months after the National Rainbow Coalition Government rode to power on a euphoric wave that ended Kanu’s repressive reign.

Kenyans were then rated the most optimistic people in the world, yearning for better governance and service delivery, but the hope dissipated as the new regime that had campaigned on a reform platform got mired in grand corruption and power feuds.

The country’s leadership, which ironically brings together the President and Prime Minister Raila Odinga, who had fired up the optimism before their falling out, has the opportunity to make up to Kenyans.

Remembering Why Kenya Needed a New Constitution–the fundamentals

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From a speech by James Orengo in 2000 at Concordia University in Minnesota:

The constitution of Kenya was deliberately designed to fail. We borrowed the worst features of other people’s constitutions. The result is a machine without rhythm or reason. We have borrowed the American presidential system but ignored the checks and balances that make the president accountable to the Americans. We have borrowed the parliamentary system from Britain but none of the parliamentary practices that makes the British parliament effective. We borrowed the Bill of Rights from the Universal Declaration of Human Rights but added in all the exceptions to rights that were common in Stalinist countries. In short, we now have a presidency without checks, a parliament without teeth, and a Bill of Rights that reads more like a Bill of Exceptions rather than Rights.

And M. Munene, 2001,in The Politics of Transition in Kenya 1995-1998 Nairobi, Friends of the Book Foundation:

the republican constitution that Kenyatta talked about rolled the powers of the governor-general and those of the prime minister into one in the name of the president and enabled him to enjoy those powers unfettered by the British government, any party opposition, or constitutional position that he did not like . . . the governor-general and the prime minister became, in 1965, the absolute president.

As quoted in Nasong’o, S.W. and T.O. Ayot (2007) “Women in Kenya’s Politics of Transition and Democratization”, in G.R. Murunga and S.W. Nasong’o, (eds), Kenya: The Struggle for Democracy London: Zed Books

Coverage of Kenya’s Constitution Campaigns

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Nick Wadhams in Time has a good overview.

In the Star courtesy of the Mars Group media pages Wycliffe Muga suggests that William Ruto’s role as a “no” leader reflects his strategic plan to establish himself as political boss of the Upper Rift Valley rather than a serious expectation of actually defeating the proposed constitution.

In this month’s free article, Africa Confidential says “Campaigning for next month’s constitutional referendum is a mixture of ideology, religion and personal ambition – and now the thugs have moved in”.

Mugambi Kiai writes in the Star (via Mars Group): “It is so easy to miss the obvious. There is so much shouting around narrow sectarian issues that the massive gains in the proposed constitution are hardly getting any airtime” and goes in to detail several of the governance reforms.

Kenyan Draft Constitution to be published by AG Thursday for referendum

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Read it for yourself here.

My take is that Kenyan voters can make their own choice. That’s what this is supposed to be about. Personally I think the process could have been better and the draft could have been better–and avoided unnecessary ambiguity and controversy–but that does not mean, to me, that it does not contain some very important improvements in the governance and political process for Kenya. Regardless, a fair vote in which everyone has the opportunity to vote, and have that vote accurately counted, is the first and indispensable step toward healing from the 2008 violence and moving toward a restoration of bona fide democracy.

Draft Constitution going to Referendum without amendments

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Not surprisingly, Parliament reached agreement on and passed none of the proposed amendments to the draft constitution during the days provided by the authorizing legislation, so the current draft will go to a vote as is. It would seem that many members are significantly disappointed in some or many respects in the details of the document.

How hard will the various major players and prospective presidential candidates work to support passage? Which will work against it–publicly or privately?

Will the voter registration be comprehensive and credible? Will the votes be counted fairly? What will be the involvement of donors in the campaign?

News Links from Today: Prosecutions, Protests and Push from the President

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Standard–Justice Minister urges ICC to ignore bids to derail prosecutions

Nation–Muslim clerics disown protests and Al-Faisal

Standard–Parliamentary Select Commission stalled on constituencies for new constitution, but Pres. Obama has called Pres. Kibaki and PM Odinga to push them to deliver.

President Obama and the New Constitution

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Have been waiting for people to write about the fact that President Obama would become eligible, upon application, for dual Kenyan citizenship under the committee of experts proposed draft constitution.

Morning Update–Constitutional Review

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The 30 day period for public comment on the proposed new constitution has now run.  Here are some quotes from yesterday’s editorial in Nairobi’s Business Daily Africa entitled “Save the Review”:

“When the Constitution writing project began in the early 1990s the majority of Kenyans were agreed that power needed to be dispersed and checked by the various arms of government.

But going by the polarisation that has emerged as the deadline for submission by the public of views on the draft closed on Wednesday, this point appears to be escaping the memory of many.

Once again, the process appears to be headed for a stalemate thanks to the short-term interests of the main actors on the political arena.

Yet the jostling for power aside, it must be said that the constitution making project has merely become captive to a lack of leadership.”

It’s pretty basic that the constitutional process has to be about the country not the current crop of individual politicians, but it doesn’t seem there is not much of a source of strong leadership from outside politics and no willingness to lead on this basis from among the politicians.  It would seem that a lot of the burden will rest on civil society if the process is going to lead to a significantly improved new constitution soon.