Cabinet meeting under President Kibaki concluded it was "practically impossible" to amend the Proposed Constitution and resolved it be taken to the referendum as it is.
The Cabinet burst into a chat house as members debated the pros and cons of the decision but finally the President laid the rule: they all campaign for ‘Yes’ and those unhappy with the decision were free to leave.
With the stroke of the pen, Kibaki appeared to have begun the isolation of ministers opposed to the draft law. In the meeting the only vocal ‘No’ voice was Minister for Higher Education, William Ruto, who is now pushing for a ‘Yes’ and ‘Yes’ to amendments later’ options at the referendum.
The President is said to have told the meeting "Huu ndio msimamo wa serikali na yule hataki huu msimamo huu ako huru kuenda popote anataka." (This is the position of the Government and whoever is opposed to it has the freedom to go where he/she wants).
The hardest hit by the resolution would be the Church, which hopes State would buy into its roadmap on changing the Constitution of Kenya Review Act 2008 to allow for uncontested consensus-driven amendments to the draft as was the case with National Accord in 2008.
The Cabinet however, according to Presidential Press Service dispatch, still had a little consolation for the Church: "It was also agreed that the Government will continue engaging leaders of the Christian Churches with a view to agreeing on an Act of Parliament that would accommodate the concerns of Christian churches on abortion and right to life.
Keenly following the proceedings of the Cabinet was Raila, who has been on the ‘Yes’ campaign trail.
The announcement appeared to be a jolt to the leaders of the mainstream churches whose representatives have been negotiating for amendments before the referendum with State officials.
Shortly after the stormy Cabinet meeting, the technical teams representing State and Church reported a stalemate on contentious issues.
At State House meeting, a few ministers opposed the demand they should support the draft, but the President Kibaki is said to have stepped in, stating there would be no compromise on the Government position.
Ruto, sources said, argued he, too, wanted a new constitution but on condition Kenyans were allowed to have a say on its content.
"Ruto eloquently pleaded with the Cabinet to listen to the voice of the dissenting Kenyans, including some churches and come up with a draft that offers them an opportunity to single out issues they wanted amended with time," said a source.
Ruto wanted the referendum question to be crafted in such a way that contentious issues would be voted on separately.
Public Health minister Beth Mugo supported the Eldoret North MP’s push for a ‘Yes’-‘Yes’ referendum.
"Mugo argued Ruto’s position had merit since it was not aimed at denying the country a new constitution, but would bring on board dissenting voices, including the Church’s concern on abortion," reported another source.
Vice-President Kalonzo Musyoka, who has lately advocated further dialogue on the draft before the referendum, switched positions and gave it unequivocal support.
The decision that the Cabinet should support the draft without amendments was reached after the ministers spent nearly three hours debating how the Government should handle the process.
The Cabinet, according to a PPS dispatch, also, "scrutinised the time table leading to the referendum as set out in the Constitution Review Act 2008, and the Constitution of Kenya."
Justice Minister Mutula Kilonzo is said to have sparked off a storm when he told the meeting at least 40 per cent of all the 14 million eligible voters must vote for the draft for it to be deemed valid, according to international standards.
"That requirement is not in our laws, but the Justice Minister was relying on laws from other jurisdictions where referendums have been held before" explained a source.
A minister from central Kenya is said to have said if Mutula’s argument were to be followed, it would be hard to ensure the passage of the new law.
"The minister said that so far there were only eight million registered voters, and 40 per cent of eligible voters are more than six million. That means nearly all those who have registered so far must vote ‘Yes’," the source added.
It is at this point that it was realised if the ‘No’ campaigners continue to soar in numbers, and eat into the enclave of the predominant ‘Yes’, it would be hard to muster sufficient votes to overwhelmingly pass the draft.
"It was realised that even if the ‘Yes’ side wins, it would be hard to ensure that such a big majority support it," explained another source, familiar with the session.
None of them was willing to be quoted because of the secrecy around Cabinet meetings.
Sources further explained Ruto lobbied fellow ministers to have the Interim Independent Electoral Commission frame a ‘Yes’-‘Yes’ referendum question to avoid subjecting a divisive document to the vote.
On Tuesday, a meeting between the technical teams representing the State and Church did not make progress. But the PPS statement also said the Cabinet agreed the Government will continue engaging leaders of the Christian Churches with a view to agreeing on an Act of Parliament — if the constitution is promulgated — to accommodate the concerns of the churches on abortion and right to life.
The Cabinet further directed the Minister in charge of Registration of Persons and the Minister for Justice to expedite and expand the acquisition of identity cards and registration of voters.
"The Government will also mobilise the Provincial Administration and intensify the campaign for registration to allow as many Kenyans as possible to register as voters before the deadline next week," PPS the statement added.
The Cabinet also expressed concern over apathy in voter registration and resolved to speed up the process and married women be assisted to acquire IDs, without being asked to produce their parent’s IDs.
The issue of the just released Performance Contracting Rankings for ministries and Government departments and State corporations featured with Gender Minister Esther Murugi leading complaint by those whose dockets were rated poorly.
Sources quoted the minister and others asking for the criteria, arguing as ministers, they deserved to know instead of being humiliated.
It was then resolved that the officials involved in ranking matrix be ordered to meet with top officials from the lowly-ranked ministries and other departments to explain the rationale.