Leave the rest to a panel of experts
How reassuring it was to hear from President Kibaki that his Government was committed to a new constitution by June 30 next year!
That emphatically lays to rest suspicions that the Government was trying to delay or even scuttle the process for selfish political ends.
However, it is my contention that the process can be shortened by three months, so that we shall have a new constitution by April 30.
The review process has come a long way even though various political interests have pulled it in opposite directions. At present, we have a detailed and poorly drafted bill with various contentious provisions.
The main shortcoming of the process until now was the absence of a time-frame for its various phases. Bomas 1 was, in a way, a success in that the delegates created the structures for the conference, and had an opportunity to bond as an institution.
Bomas II was both a success and a signal failure. Success in the sense that the delegates had a chance to check whether their views had been incorporated in the draft bill.
It was, however, an abject failure when the delegates tried to provide a technical input to the bill so that they could come up with a legal document. In this phase, the majority of delegates were like headless chickens, wandering all over the place.
In my view, the Bomas process should have had only one function � debating the various provisions of the Bill in general terms and in an atmosphere of consensus rather than trying to create the final document. This latter cannot be achieved by 600 delegates.
Perhaps the purposelessness of Bomas could be understood by looking at a second constitutional conference going on in Kenya.
Five kilometers to the south of Bomas, Somali delegates are attending a similar conference. At Mbagathi, they are attempting to reconstitute the Somali state. A diverse number of delegates, most of whom have spent the better part of their lives outside their country, are trying to write a new law.
Donors have spent millions of dollars and the result is most disappointing. Two years down the road, the delegates are still debating and quarrelling, and their conference, like Bomas, does not seem to have a time schedule.
Like the delegates at Bomas, the majority at Mbagathi have no clue what the process entails. On a certain day three months ago, they were discussing the national and official languages of the Somali state. Somali, Arabic and English were agreed on.
A week later, at the instigation of an outside force, a militia leader requested the conference to revisit the issue and include Italian as the fourth language. He and his supporters vowed they would withdraw from the conference unless their request was acceded to. A perplexed conference conceded. The Mbagathi conference will not deliver a workable constitution to that war-torn country because the delegates are being controlled by outside forces, just like Bomas.
The Mbagathi conference has the dubious distinction of having the largest concentration of freeloaders anywhere in Africa. It, like Bomas, is a self-perpetuating circus that is purely maintained to create an illusion that it will deliver a new constitution.
To expedite our coference's conclusion, a panel of experts must be urgently constituted so that the process can be finalised by April. It is no longer in doubt that the process needs such experts.
Most Kenyans have probably not scrutinised the provisions in the draft bill. Some of the provisions I find most comical.
The copy I have is a huge document. It has 20 chapters and eight schedules. Sample this litany of superfluous provisions:
Article 8 states that the capital of Kenya is called Nairobi. Article 91 states that political parties are legal persons. Article 114 states that the Speaker shall preside over the national council or the Deputy Speaker will, in the former's absence. Article 117 states that the Speaker or in his absence, the Deputy Speaker, shall preside over the sitting of Parliament. Article 121 states that MPs will be paid salaries!
In my opinion, 60 per cent of the provisions of the draft bill is redundant and irrelevant.
What of the much talked about devolution with its four layers? From the village to the location, district and provinces, I estimate that we will have between 70,000 to 100,000 Kenyans elected or nominated at the village level alone, a further tens of thousands at the other levels.
Under this devolution, a good number of Kenyans will hold elective posts! This means that at the village level alone, the country could pay salaries to the tune of Sh I billion a month.
The draft bill, in general, is a very impracticable document. Its provisions are irrational in the sense that even for devolution, it merely addresses concerns within the context of the Executive arm. One notices the complete absence of local courts, regional courts and superior courts. Devolution of the Legislature is also not addressed.
The genesis of the problem can be traced to the manner and the speed with which it was written. It was unco-ordinated and rushed in light of a suit filed by the now disgraced judges and their proxies.
The various chapters were not synchronised, and since it contains provisions that support certain aspirations of politicians, power games are being played to consolidate certain provisions at all costs.
What we have is a standard constitution currently in vogue for Third World countries. That is why we have a proliferation of consultants who can write constitutions for failed states at very short notice and in record time. They are the rapid reaction force of constitution-making, and in all the countries they go, they give the same recipe � whether the problems have been caused by the Taliban, Ba'athists or Kanu.
It is clear the Constitution of Kenya Review Commission was not guided by any core philosophy. So, with such a dreadful draft bill, what technical input will the delegates at Bomas add?
In my view, to salvage the process, I suggest that Bomas III should be avoided if possible. Instead, a technical committee of experts should be appointed.
That group of experts is not difficult to agree on. We should appoint seven Kenyans for a period of two months starting January. The Parliamentary Committee on Constitutional Affairs will select one person per province in consultation with the various parliamentary parties.
Civil societies like the Law Society of Kenya, Fida and ICJ can provide some of their members for technical expertise, and the religious organisation that represent Christians, Muslims and Hindus can second expert representatives.
To debunk the apprehension that the experts are being fronted by a certain selection of politicians, they can be appointed to act independently with the mandate that they rationalise the bill and delete outlandish, bizarre and superfluous provisions.
There is an urgent need to depoliticise and de-ethnicise the review process so that instead of wasting more time and resources at Bomas, it is handed over to a panel of impartial experts who merely edit the bill to rationalise its content and deliver to Kenyans a new constitution by April.
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Mr Monari is a council member of the Law Society of Kenya.
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