Prof Kibwana On Consitutution

After two decades of constitution-making and three successive constitutional drafts – Constitution of Kenya Review Commission (CKRC) Draft, Bomas Draft and Wako Draft – will the Experts’ Draft finally deliver the phalarope, Kenya’s new National Charter?Since the l980s and especially in the l990s, Kenyans in their corporate struggles have established that their country will henceforth be a land of freedom. No leader or group of political leaders can establish a dictatorship in Kenya.Although the written new constitution has so far not materialised we have however, put behind us personal rule authoritarianism. After 10 years of President Mwai Kibaki’s open society oriented leadership style – what some call ‘laid-back governance,’ no imperial leadership will be possible unless the leader(s) wish to foment civil strife. I believe in any space that is Kenya, Kenyans have appropriated their space.

The year 2010 is significant because this must be the year we legislate our new found freedom through a constitutional framework. We shall then have declared ourselves: Kenya, land of the free and opportunity.In my view, we must overcome the following obstacles, among others, to guarantee an enduring constitutional settlement. The political elite must desist from viewing the generation of a new constitution as a battleground for succession politics or the fulfillment of other partisan interests.The Committee of Experts (CoE) which is charged with the life-giving role of mid-wife for the new Peoples’ Charter must demonstrate it is only supportive of the National Interest and not the narrow interests of any sector.

CoE must also play honest broker in the negotiation process for a new Katiba. CoE must demonstrate respect and of course, necessary firmness, in its dealings with all stakeholders in constitution-making. CoE must honor the views of Kenyans presented to the constitution-making harambee and only use these, first and foremost, as the material for the constitution-in-making. Critically, constitution making is about give and take. The Social Contract that is a constitution must reasonably accommodate the aspirations of all sectors of our society.

We need a governance and citizenship framework that will secure Kenya’s nationhood, development, peace and stability. Therefore, if the 30 days’ public debate of the Experts’ Draft does not observe the give and take principle, then the constitution is likely to abort once again. If give and take is embraced in the final negotiations of a new constitution for Kenya, then the Referendum or vote for the new constitution will be an easy ride.

We must thus mobilise Kenya’s latent genius which always helps us to avoid national cataclysms at the last hour. We peacefully achieved regime change after Moi. We overcame full-fledged civil war in 2007/2008. We never went under after Kenyatta’s demise.A new constitutional order therefore must, through a national consensus, replace the independence constitution that during one-partyism was made a One-Party State Constitution through prolific amendments. To become a middle economy, Kenya needs a facilitative constitutional framework. Contentious issues must be negotiated, but ultimately the New Constitution is Non-negotiable.

Prof Kibwana

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