Debate on the proposed constitution has brought together politicians who were in the front line in fighting the Moi administration in the ‘90s.

Firebrands of the past two decades are pushing for a change of the constitution while Daniel arap Moi and his former students are opposed to it.

The retired president has described the draft law as “academic” and declared that he will campaign against it.

And some of his “political students” have joined him in the campaign. These include Agriculture minister William Ruto and MPs Cyrus Jirongo (Lugari), Isaac Ruto (Chepalungu), Zakayo Cheruiyot (Kuresoi) and Sammy Mwaita of Baringo Central.

In an interesting turn of events, the Moi scions have been thrust into a contest with the Kanu-era reform activists such as Prime Minister Raila Odinga and Cabinet ministers Kiraitu Murungi, James Orengo, Anyang’ Nyong’o, Otieno Kajwang’ and MPs Gitobu Imanyara and Martha Karua, who are fighting for the new law.

The Ruto camp, comprising largely Kalenjin MPs, have declared they will reject the draft if it is not amended.

“The president, as recommended, has more powers than a king. They are enormous,” says Mr Ruto.

They have also called for amendments to accommodate regional governments as the second tier of devolution. Moreover, they have taken issue with the chapter on land, with the baffling claim that some communities stand to lose their land if the new constitution is enacted.

Though not directly linked to the Ruto campaign, Deputy Prime Minister Uhuru Kenyatta, another Moi offshoot who had initially expressed support for the draft, recently opted for “the middle ground.”

Mr Ruto and Mr Jirongo were prominent members of the infamous Youth for Kanu ‘92, which campaigned vigorously for the return of Mr Moi and Kanu during Kenya’s first multiparty elections in 1992.

Mr Jirongo was the chairman while Mr Ruto, then a youthful university graduate, was an active member.

The organisation was accused of electoral malpractices, including bribery.

The “Yes” group, which has had a long journey in the clamour for reforms, appears to have shaken off political party affiliations and found common ground in the quest for a new constitution.

This was manifested in their contributions in Parliament two weeks ago, when they put a spirited fight for passing of the draft, saying it had made a serious attempt at empowering the people through devolution of resources, putting checks on the presidency, separating the Executive from the Legislature and addressing the plight of women and minority groups.

They also praise the Bill of Rights, provisions for vetting of the Judiciary and reforms in the Police Force.

During debate, a number of MPs paid tribute to “these sons and daughters of Kenya who have given substantial part of their lives to the struggle for a new constitution.”

Mr Murungi, for instance, recollected that he came to Parliament for the first time “principally as street a fighter for constitutional reforms.”

According to the Imenti South MP, the constitutional debate has since changed in both form and character.

“When we entered this struggle, we were fighting for justice, but these days, it is all about power,” said the former Justice minister, who is remembered for leading the Cabinet walkout from the Bomas talks.

“There are too many political intrigues, endless ethnic caucuses, backroom political machinations, cloak and dagger politics, all masked as constitution reforms,” Mr Murungi added.

Mr Imanyara, the Imenti Central MP who was tortured in Nyayo House and detained in various jails across the country, asked MPs to pass the constitution as a gratitude to Kenyans who suffered for it.

“I am happy that the days I spent in Nyayo House, Kamiti and Naivasha Maximum Security Prisons were not in vain. I am sure that wherever Jaramogi Oginga Odinga is lying today, he is a happy because his dream for Kenya is finally getting the attention of this House,” said Mr Imanyara.

Indeed, the final stages of the journey to a new constitution has seen an interesting reversal of roles.

The first was depicted in Parliament at the start of discussions on the draft, when Mr Imanyara, a victim of the current law, presided over debate as acting Speaker. He is a member of the Speaker’s Panel.

Mr Kajwang’ was moved by Mr Imanyara’s historical role: “It is a beautiful morning that you are the one presiding over debate on changing the current constitution and ushering a new dispensation.”

The second is the prominent role now being played by politicians who were seen as anti-reform, notably President Kibaki, who is now leading the “Yes” campaign, and Justice minister Mutula Kilonzo, who is shepherding the review.

At the height of the agitation for constitutional reforms, especially the push for multipartyism, President Kibaki, then Health minister, likened the introduction of many parties to cutting a mugumo (fig) tree with a razor blade.

Jumped ship

Ironically, when Section 2A was eventually repealed to allow multiparty democracy, Mr Kibaki jumped ship to found the Democratic Party, which he used to vie for the presidency.

The mugumo remark has haunted him for the past two decades. In his contribution, Mr Imanyara made an interesting allusion to it by likening the passing of the new constitution to the cutting of a mugumo tree.

“I wish the President was here today to see that what he said so many years ago can come to pass during his presidency. He should be happy that we are finally giving the people of Kenya a constitution they deserve,” he said.

Mr Kilonzo, a long-serving Moi lawyer, adviser and Kanu strategist, is now Mbooni MP and has the singular mandate of presiding over the country’s rebirth.

And then there is the unique bracket of forces who have spent years pushing for a new constitution but have now turned into strong voices against it.
The Rev Mutava Musyimi, the Gachoka MP, is the personification of this lot.

The Anglican Church of Kenya cleric, was then the NCCK secretary-general. He distinguished himself as a champion of law reforms when he was the convener of the Ufungamano Initiative, which became the national face of agents for constitutional change.

At the time, he worked closely with Prof Kivutha Kibwana, then of the National Convention Executive Council (NCEC). Prof Kibwana is now the President’s adviser on the Constitution.

The Rev Musyimi’s opposition to the draft is linked to the positions taken by his colleagues in the Church. The Gachoka MP proposed amendments to the clauses on abortion and the kadhi’s courts but they were rejected.

The Church objects to the section of Article 26, which empowers doctors to end a pregnancy if it endangers the woman’s life or she needs emergency treatment.

Kadhi’s courts

Christian leaders are also opposed to the retention of kadhi’s courts in the proposed constitution under Article 169 and 170, which limit their authority to disputes over personal status, marriage, divorce or inheritance, where all the parties are Muslims and agree to take the case to a kadhi.

However, several Christian clerics have come out in support of the draft, including Dr Timothy Njoya, an outspoken preacher who narrowly escaped death during the push for a new constitution.