5

Five options are being offered as possible solutions to defuse mounting opposition by churches to the draft constitution. They include:

1. Freezing the clauses on the kadhi courts, abortion and land and presenting only those sections where there is agreement during the referendum.

2. Presenting the draft to voters at the referendum with an MoU committing parliament to the changes.

3. Taking advantage of a clause in the draft by which aggrieved parties can force a referendum by collecting one million signatures.

4. Changing the constitution to provide for amendments before the referendum.

5. Changing the law to vote on contentious issues only.

The suggestions by legal experts came as the top decision making organ of the Catholic church — the Kenya Episcopal Conference — voted to back the No vote if the clauses are not removed.

Gichugu MP Martha Karua, a former Justice and Constitutional Affairs Minister, said the options of either freezing out the contentious issues or subjecting them to a referendum were discussed during the PSC retreat in Naivasha. “However, because of the political settlement in Naivasha, we did not have brackets (unresolved issues) to consider the options. People had no rethink about contentious issues,” she said.

While questioning those pushing for amendments to the draft, Ms Karua warned that freezing or isolating contentious issues to deal with them separately was like enacting minimum reforms. “Freezing or isolating will jeopardise the review and we cannot go forward. It is like doing minimum reforms when you are in essence seeking comprehensive reforms,” she said.

The Narc Kenya chairperson said Parliament had demonstrated the difficulty it could face in amending the draft and urged those opposed to use other means. She said they can easily collect a million signatures to push Parliament to work on those reforms. “The church, and I am a Christian, can easily collect one million signatures and submit to the Interim Electoral Commission to bring to Parliament on any issue they are not comfortable with,” he said.

Ms Karua said the Committee of Experts should not be blamed because it held a meeting with PSC members in Karen to agree on the draft before it was presented in the House.

A single unit

“The CoE even bent backwards and met us in Karen before handing over the draft. Some issues can be handled as we cross the bridge but let us pass this draft,” she said.

According to constitutional lawyer Kibe Mungai, it would not be ideal to pass the proposed constitution in bits since the law should be a single unit.
He however said that the ideal situation would be for parliament to change the law governing the review process. “This would allow us to deal with the issues that seem divisive. Then again there is no deadline that we must have a new constitution by a certain date because we are already operating on one. It would be ideal to have two or three more months to help solve the issues,” said Mr Mungai.

Law Society of Kenya Chairman Kenneth Akide warns that any delay in the set timetable of the review is uncalled for and will be rolling Kenyans backwards. “Those unhappy should know that there are mechanisms for amendments. It is not that they will not be allowed to speak thereafter,” says Mr Akide.

Former Cohesion Secretary Dr Kindiki Kithure suggests a simple amendment providing that a “contentious issue can only be operationalised at such a time when consensus will be reached.” That is exactly what Uganda did in 1986 when they were making a new constitution on the question of multiparty democracy.

The provision was there but there was a rider that the clause would become operational after a decision to be taken in future. Mr Akide says that another possibility is for the government and the churches alongside those opposed to the draft will met around a table on the basis of trust. “If we were to re-open the debate, there is a real danger that we can never agree. Look at the amendments proposed yet none of them secured a two-third majority,” warns Mr Akide.

Not a friend

Senior counsel Paul Muite says he can only offer one option: the proposed constitution goes to the referendum. “Anyone voting “No” at the referendum is not a friend of Kenya and that would be a recipe for chaos,” he said. “The proposed constitution enables us to have free and fair elections. And there cannot be chaos,” said the senior counsel.