CAN RUTO STOP DUCKING AND WRESTLE WITH THE AGWAMBO?

By Miguna Miguna, APRIL 16, 2010

A few weeks ago, Kenyans were treated to interesting political comedy. The Eldoret North MP, William Ruto, publicly threw down the gauntlet and challenged the Prime Minister to a political contest. In a dramatic chutzpah, Ruto asked the PM to face him directly if he was “man enough”. Although Ruto did not specify the nature of the contest he was inviting the PM to, many observers assumed that the new battlefront would be the referendum campaign. It is.

Ruto claims that the draft constitution is not good because of “reasons” that are not founded on the draft constitution itself. In the draft, title deeds remain sacrosanct. Kadhi courts are retained as they are in the current constitution. Contrary to myths and cheap propaganda, abortion is illegal in the new draft; the draft says “life begins at conception.” On the other hand, abortion is currently permitted by section 240 of the Penal Code. Therefore, saying “No” achieves nothing.

The demand that the draft awaiting publication at the Attorney General’s Chambers should be “recalled” so that amendments can be inserted to it before the referendum is a product of myopia. No one has the power to prevent or suspend the publication of the draft constitution; not even the A-G himself. The baby has been born and no amount of force will return her to the mother’s womb.

Asking the President and PM to convene a special session of parliament in order to repeal section 47A of the Constitution and insert a new provision allowing for an extension of time for the publication of the draft and holding of the referendum may be innovative but it is not legally permissible. Even if it were, Ruto & Co can’t raise two-thirds majority to effect their desired changes. Suggesting that the Constitution of Kenya Review Act should be amended to legitimize this political chicanery demonstrates the level of incorrigibility rather than creativity. Both suggestions must be rejected because they are illegal and impractical.

In an act of fake humility, Ruto, for the first time, referred to the PM as a “principal” and “our leader,” and the ODM as “our party.” These cajoling words were aimed at achieving selfish political ends; scuttling the self-propelling constitution-making mechanism in order to create confusion and ultimately scatter the whole exercise so that the status quo prevails. Kenyans continue to reject such maneuvers.

Recently, Uhuru confirmed to the country that he prefers the current constitution over the new one. He declared that he would neither campaign for nor against the draft. Now, John Cardinal Njue and a handful of Catholic bishops are demanding that we return to the one-party dictatorship era and allow the President to mutilate the draft constitution using some non-existent “executive powers.” It is a slippery slope we must not permit. Those with hangovers from the Big Man syndrome shouldn’t be allowed to take us back. Kenyans prefer the rule of law and constitutionalism. Neither the Review Act nor section 47A of the Constitution authorizes such executive fiat.

Those opposed to a new constitutional order are a worried, confused and agitated lot. A week ago, they called for the “renegotiation” and “consensus building” over their newly manufactured “contentious” issues. When the Government agreed to form a joint-team to study their grievances, they emerged from closed-door meetings to demand specific amendments otherwise they will vote “No”. To them, consensus means all their demands must be accepted. I am sure they will issue more demands and orders tomorrow. They might even threaten purgatory if their demands are not met. However, despite the threats of hell and mayhem by the “No” advocates, the constitution-making process will move forward and Kenya’s new child shall walk and run.

The “No” advocates are very worried. In the draft, the President is not above the law. The bill of rights entrenches and guarantees fundamental freedoms and rights to all. Rigging of elections is extremely difficult. The President will no longer have a free hand to appoint election commissioners and other senior public officials alone. For once, there will be a level-playing field. Could these be the primary fears of the Naysayers? Or is it that the current executive arrangement doesn’t provide four fat positions for the KKK chiefs?

One last problem: the ICC Prosecutor is on his way to Kenya. If he persists, like he is determined to do, will some of the loudest noise makers be indicted? Could that be the real reason some people are running around like headless chicken; the fear that if one doesn’t replicate Sudan’s President Omar Hassan al-Bashir’s strategy of hanging on to power then one might land in the jaws of The Hague?

That’s a big one. But returning to Ruto’s challenge to the PM; will he stop ducking and wrestle with the Agwambo?