I am not opposing proposed constitution to fight Raila

Higher Education minister William Ruto says there is still room for negotiation over contentious issues that will save Kenyans from participating in a divisive referendum.

In a wide- ranging interview with the Sunday Nation, Mr Ruto, who is leading the campaign against the proposed constitution, tells Special Projects managing editor Macharia Gaitho why he is opposed to clauses on abortion and land.

Below are excerpts:

If today Raila turned around and said ‘No’, would you also turn around and say ‘Yes’?

I don’t think that’s a fair question. It’s actually insulting to us.

There’s the feeling that this is a political fight rather a dispute about the constitution, and that whatever position one side take the other will automatically do the opposite?

 As far as I'm concerned I am still keeping my contest to the content of the daft constitutions. It’s always been that and the people, who are saying that we are saying 'No' because of Raila, it’s actually an insult to us. Cos it means we do not understand the constitution or we are being petty.

You have been very specific in the things you were uncomfortable with at the discussions before the draft was passed in Parliament: Devolution and land. But since then the no team has grown and brought in all kinds of groups with different objections. How strongly are you opposed to issues highlighted by other groups like the churches specifically abortion and kadhi courts?

 By the way the issues are varied and it is not entirely correct to say it was mainly land and devolution issues. Issues had been identified as way back as Naivasha. Kadhi courts was a non-issue because that had been sorted out by religious leaders across the board, and the agreement factored into the Wako draft, and that is why kadhi courts issue was not in contention in 2005. The CoE went and destroyed that agreement and That was the Wako draft provision on courts for all other religions?

Yes, religious courts, and had CoE factored in that agreement, that should have sorted out the issue. On abortion we’d agreed in a Naivasha, but it was the Experts who went and liberalised the clauses, introducing another three or four sentences which completely made for abortion on demand.

Aren’t the MPs in Naivasha not the ones who complicated the issue by bringing in the Catholic doctrine, the missionary position so to speak, that ‘life begins at conception’? That was not in the original draft.

True it was not in the original draft, it was a presentation by church leaders, they pushed their case, and we agreed with them on the wording. The Committee of Experts unfortunately came and made it liberal, and that is why the church is now bringing issues.

But is it correct to say it introduced abortion on demand? A lot of people say that’s a lie. It is specific that abortion is illegal, but only allowed if the mother’s life or health is in danger.

Read it properly. If it stopped at ‘when the mother’s health is in danger’, and that’s where we stopped in Naivasha, there would be no problem. But the CoE came up with ‘in the opinion of a health professional’ which was not there. They again opened another window and added ‘emergency treatment’. That is different from the mother’s health being in danger. Then there is also another provision, ‘If it is provided for by any other written law’ There is already written law, and if you read ...

Doesn’t ‘Any other written law’ include the prevailing written law, the Medical Practitioners and Dentists Act that outlines how abortion can be allowed?

If you read the constitution in its entirety, ‘any other written law’ read in the context of Section 2 (5) and (6), says that any treaty ratified by Kenya becomes part of the laws of this country. It also says that the general rules of any international treaty ratified by Kenya become part of the Laws of Kenya. With that you have basically opened up the whole thing to abortion.

Out there in the public rallies, you make a lot of reference to that section on international treaties. You seem to be equating international law or international treaties with domestic laws of other countries. You are telling the public that, for instance, the laws in the US or the laws in Argentina that might allow abortion or gay marriage in those countries will apply to Kenya.

I have never said that.

That’s the message coming out of the No campaign.

Even on the campaign I’m very clear. I have said conventions or treaties agreed on in hotels and meeting rooms and other places where they are normally done.

When you talk about international treaties or conventions, do you refer to things like the African Charter on Human rights or the UN Convention, or do you refer to American or Argentinean law?

There seems to be a lot of confusion. A lot of people are being led to believe that if American law allows abortion or gay marriage, then Kenyan law will allow abortion or gay marriage.

For your information read the ILO charter, which has already been signed by Kenya; it actually says you cannot discriminate on gays, right? It’s an international treaty, so you have through the backdoor allowed gay marriage. Those are the kind of things we are saying. In the present constitution it is specific that those treaties must go though due process in parliament.

Doesn’t the new constitution also state that all laws must go through Parliament?

No it does not. When the constitution says ‘ratify’ the process of ratification is different from the process of domestication, which is through parliament. And the word ‘parliament’ was actually removed.

If all reference to abortion was removed and we go back to status quo of existing constitution where there is no reference to abortion, would that satisfy you?

That would be fine with me.

But the Churches would still insist that we must include ‘life begins at conception’, which is really the Catholic doctrine, and specific outlawing of abortion.

A constitution is a negotiated document, and that negotiation is possible. But if we try to lock the door on other citizens and dismiss them saying ‘that is your dogma don’t being it here’ then we won’t get anywhere.

You have said often that after referendum it will be possible to re-negotiate, resolve contentious issues and still pass a new constitution in good time. We saw what happened after Naivasha and Kabete failed to resolve the deadlock. Then it went to Parliament and out of a handful of contentious issues nearly every MP brought his own list of amendments. Will be moving forward or just opening room for yet more issues to be sprung? The list seems to grow by the day!

The 300 or so amendments proposed in the House, some were on the basis of removing or adding commas, add this word, those were small time ...

And yet they were still fought ...

No, they were not fought...

Because everyone decided: ‘I am not going to allow any amendment unless it is my amendment’

No, no, no, that was not even the reason. The reason why that amendment failed was because of the architecture of the Act, which we argued to the last day. The constitution cannot provide that to amend one comma, you need two-thirds majority, but to pass the whole document, you need simple majority. We failed in parliament not because we could not harness agreement, but because of the architecture of the Review Act.

Should that not also have been up for discussion?

It should and that is where we are going to begin when this process ends on August 4. If it had been possible for Parliament to discharge its responsibility we would not be where we are.

As an MP aren’t you part of the problem or are you part of the solution?

It depends on where you stand, because we participated as Members of Parliament. Some of the issues in contention we had resolved in Naivasha, Especially the land issue. Unfortunately they were sneaked back in by the Committee of Experts. So am I part of the problem or part of the solution?

That was MPs agreeing, but there are so many other groups, like churches which have their own issues. Are you confident that we can achieve 100 percent concurrence if we go back to negotiating table?

Not 100 percent, but at least we shall achieve a threshold that allows us to pass the constitution with at least 65 or 70 percent, as things stand now the country is divided down the middle.

If you were willing to concede in order to achieve a consensus, what would you give ground on?

The things we are asking for, it is not that anybody is opposed to them. The issues on land, they were not contested in Naivasha. All the groups agreed that land, like any other property, must be protected in the constitution. But Section 40 (3) (a) says other property you cannot be deprived, unless it is an interest in land. What are we doing?

But don’t provisions already exist for compulsory acquisition for public good, roads etc, is anything changing?

40 (4) provides for compulsory acquisition. Sub-section (6) provides for seizure of illegally acquired land, we have no problem with that. But we are saying fundamentally, land as an asset must have some protection so that if you spend a million shillings and buy a piece of land, you should have constitutional protection for it. That’s what we are saying.

Are you saying this document removes those protections?

Absolutely! Go and read!

You have brought in the issue of illegally-acquired land. It has been said that those opposed to the new constitutions are those who want to protect what they have grabbed...

That is the blanket is used so that you gloss over the issue, it’s actually a scarecrow. But we are saying let us look at the issue on its merit. Sub section (6) is talking about seizure of illegal acquired land, we have no issue with that. But legitimate land, bought by legitimate persons, must have protection. Read the so-called government policy on land and the talk of historic injustices. To me talk of historical injustices is obnoxious. It is really tragic.

That is interesting. The issue of redress for historical injustice was introduced specifically to address grievances in the Rift Valley, and the Coast, where the indigenous inhabitants say they have lost out on land. Those grievances are what have been exploited to fuel the ethnic clashes. Isn’t it then a contradiction when you dismissed effort to redress historical injustices?

What we are saying is this. The people of, for example Kiambaa in Eldoret or Kiamunyu or all those other areas, the people at Mpeketoni in Lamu, you want us now as a country to begin to ask them how they came to be in those areas. That now Kenyans are going to complain about those kinds of settlements? That we are going to be complaining about settlements in Trans Nzoia because that is ancestrally and traditionally and historically the land of the Pokot or the Kalenjin? What are we doing to the people who live there today as legitimate land owners? What are we saying when there have been quarrels over land issues, now you are giving a constitutional platform for that contest to be fought.

I thought it was the other way round. That the so-called indigenous people are the ones whose grievances are being addressed because of the sense of deprivation they feel. I thought that was your grievance ...

And what will you be doing for the people living in Rift Valley today? You will actually be giving the warmongers a constitutional platform to actually prosecute their case. The documents say the people exercise their sovereignty either through representation or directly. So you will be telling the goons or any other group of people in Rift Valley that they can organise themselves and say ‘this is our land and we want to exercise our sovereignty directly by driving out these people’.

I thought that the message the No campaign has sent out in Rift Valley is that ‘this thing is not good for us because it protects those who took our land’?

Don’t you find it strange that Moi and Koigi Wamwere are on the same side?

I find it very strange.

On this issue what Moi is saying and what Koigi is saying, is that the Rift Valley land conflicts now will have a constitutional basis.

Another odd issue about Moi and Koigi being on the same side is devolution. Koigi, Wanyiri Kihoro and many others are opposed to the devolution. To them it means segregating Kenya into ethnic blocs, to the detriment of those settled outside their ancestral lands. But Moi, and I presume yourself, feels that the devolution proposed does not go far enough.

Machage and company are opposed because they don’t have their own county as the Kuria. In Meru some of the sub-ethnic groups also fear they will lose their counties. Don’t we have a contradiction? One group in No says devolution does not go far enough, another group in No says it goes too far.

No. You see the devolution proposed is a mongrel because we were unable to fix the correct model of a three-tier ..


No, as originally proposed by Bomas.

Inherited from Bomas, retained in the first CoE harmonised draft.

Yes, but the time it came to Naivasha, the CoE had reduced it to two levels.

Which they said came after representation from the people.

But they were representations through e-mail and SMS, not representation by any serious group. We had the counties that would take care of the Machage’s and other small guys, while the regional government would provide a serious government tier with capacity to make law. If you make the lower government too small, it cannot function. We lost the three-tier model and lost devolution.

I would presume that Koigi and company would still not want that three- tier, that regional government.

That can be negotiated. When we were at Kabete, we were almost there, we’d agreed on 23 regions, the 74 counties..

You agreed on many things, but then you went to Parliament and every Mp came with his own slate of amendments. Why were the amendments not agreed on at Kabete so that designated MPs representing both sides would be the ones to present them?

From Day 1, there a section of us who were against any changes to the constitution for some strange reason. Even Kabete was undermined by us. Let me be specific: While we were at Kabete, the Prime Minister decided to go and have a rally in Machakos, and he called in Musalalia Mudavadi, Charity Ngilu and all those people. We were stuck with the likes of James Orengo. Remember even before Kabete we had resolved to go to Naivasha. It aborted because the PM went back to Parliament and scuttled it using the ODM brigade. They did not want the kind of agreements we were trying to reach because we felt the CoE had scuttled some of the issues we’d agreed on. In fact we’d created such an agreement in Kabete with support across the board, but at last minute it was scuttled by our friends, and they became part of the team that kept walking in and out in Parliament. Looking at Kabete and the level of agreement is why I’m persuaded beyond doubt that an agreement is possible.

Even on devolution and the model of government?

Even on devolution. Many people accuse me of making a lot on input on the proposed set op of the executive which goes all the way to devolution.

The removal of the office of Prime Minister?

It’s not exactly removing. We agreed we either go presidential or parliamentary; and forget about this monkey business of shared power. When we decided to go presidential, I was very clear that minus an elaborate devolved system, the presidential system could degenerate into a dictatorship. Apart from a strong parliament, you need strong regional governments to check on a presidency that has centralised power. We will now have a president who has absolute power.

Under the proposed constitution aren’t there very strong checks and balances?

The proposed constitution is worse. Let nobody cheat you about the checks. If you elect a president and he comes in with his party commanding a solid majority, what checks will be in parliament? You need strong regional governments to help manage the centre. You need a strong Senate, what we have in proposed constitution is not a Senate, it’s actually a Lower House.

Why do you say that?

A Senate, which is an Upper House, vets legislation, this senate has no power except on laws touching devolution.

But you’ve not made any noise about the Senate and its powers or lack of power?

You know, to have an effective campaign, you don’t spread the issues too far. I can talk to you about Senate and checks and balances because you’ll understand, but you don’t go to ordinary folk on that, you need to give them things they can relate to.

This referendum campaign has been very emotive in the Rift Valley. Are you isolating yourselves from other Kenyans? Are the Kalenjin isolating themselves?

Not at all. You will see the Maasai are even more against this constitution and they are not Kalenjin. The Meru, the Kamba, the Kisii, very many of them are in the No camp, you wait and see.

On the issues of land, particularly in the Rift Valley, there has been the issue of threats...

If you talk about threats I think you are stretching it too far. There have been no threats.

We have heard MPs in the No camp telling their people that this proposed constitution will allow their land to be grabbed by outsiders?

I don’t think anybody has made that kind of statement. Those ones are imaginary. You see there was an attempt to blackmail those of us in the No campaign by saying exactly what you are saying, that awe are isolating ourselves. You don’t isolate yourself when you are speaking the truth, when you are sticking by your principles and what you believe is right. The entire church is not a Kalenjin church. The Meru are not Kalenjin, the Kisii, Kamba, Maasai are not Kalenjin. The people in Western Province who are almost halfway on our side are not Kalenjin. So that is a moot issue.

How about the issue of political realignments ahead of 2012?

That’s an irrelevant issue for now, completely irrelevant. Unlike 2005, this referendum is a lot different. You can actually have a very successful ‘No’ rally like what happened in Muranga. In 2005 it was not possible to have a rally in Central Province, but we had a huge successful rally in Nyeri last Sunday. There was huge rally in Kigumo. In Meru where we could not even step at the last referendum, we have had the most successful rallies. We have had rallies in the coast. You saw us in Narok the day before yesterday. Unlike in the past this referendum actually is non-ethnic, it cuts across the ethnic blocs.

Early on in this campaign there was the KKK element, the ethnic alliance bloc mooted between you, Vice President Kalonzo Musyoka and Deputy PM Uhuru Kenyatta...

The media got us into it...

No you got yourselves into it and some of you were speaking about it every opportunity. Early on the other two were seen as hesitant in the Yes camp, and you are still exploiting that wherever you can, particularly in Kalonzo’s Ukambani turf. Has the referendum campaign where you are on opposite sides impacted on that relationship?

The referendum is about the constitution. 2012 is about a different subject.

These things tend to shape alliances or build and destroy careers.

That will be seen after the referendum, for now that is not an issue to discuss.

We have seen a regrouping of the Moi forces. After 2007 Moi had isolated himself from the Rift Valley mainstream thinking, and a lot of his people like his son Gideon, and Mr Nicholas Biwott lost out and became irrelevant. Now we are seeing you all on the same side. Might that have an impact beyond referendum?

That’s like saying Moi and Koigi will be in the same party after the referendum.

Have you been working together with Moi, had any meetings?

We’ve not had any meetings.

It’s notable that you’ve not attended any rallies together. Why?

We attended the prayer rally in Nakuru together.

That was a ‘prayer meeting’, even Maina Njenga was there.

By the way there would be absolutely nothing wrong if we attend the same referendum rally with Moi.

Since the campaigns started, have there been any serious efforts to bring the two sides together for a negotiated settlement?

Absolutely, there have been very serious attempts.

So why have they failed?

They have failed because on one occasion, one of the sides in the coalition was unwilling, one of the sides in the ‘Yes’ group.

Are you specifically referring to the ODM grouping, the Raila grouping?

Absolutely.

What is the fate of ODM after all this? Do you see it surviving in its present shape or will a large group of yours get out?

Politics is dynamic. We will cross every river when we get there.

Recent by-elections exposed that ODM was fighting within itself. How badly did that affect the outcomes? Do you regret or applaud what happened?

In the case of Magara he was unfairly treated by the party.

But the party said it would be a contested nomination, why did he walk away instead of seeking the ticket?

Why do you use double-standards? In South Mugirango it was supposed to be contested. In Matuga it was not. It was obvious even if he had contested and won, he would not have been given the ticket.

Are you saying the Raila group, the party secretariat, has shut you people out of decision-making?

Absolutely.

Then I suppose you have no business remaining in ODM?

We have every business being in ODM. We were not invited, we are part of the people who created the party.

Does the ‘No’ campaigns have any position paper on the concession you’d be willing to make if it went to negotiation?

It will boil down to about five issues. The chapter on land, the agreement we’d struck in Naivasha was good. We had amended Section 40 (3)(a) appropriately; we’d dealt with National Land Commission; We’d removed the issues of historical injustices and left them to legislation; We removed all those issues of minimum and maximum land holdings and said they should be handled by legislation; We had removed issues of taxation of land to go to legislation; those kind of things.

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Kadhi courts?

We’d resolved the kadhi courts back to the one hammered out in 2005.

That the Wako draft provision for multiple religious courts. Wasn’t that generating fresh problems?

It did not, and that’s why the issue of religion was not in contention at the last referendum.

Abortion?

We had a negotiated position that took care of the concerns of both the church and the medics.

I thought that’s where churches and medical fraternity were at odds all along and the churches put their foot down and said ‘either my way or no way’.

They were never given a chance, because we agreed with them in Naivasha, when it went to the Committee of Experts, they were dismissed. And from there they never got a platform.

What you agreed in Naivasha, wasn’t that the other extreme, where life begins at conception, and there’s absolutely no room for abortion even to save the life of the mother?

No, go and read. It was specicific: “abortion is not permitted unless the life of the mother is in danger”. Full stop! All these other additions, including ‘any other written law’ was not there. That what the church is saying should not be there, and ambiguous clauses like ‘medical health practitioner’. That’s fairly straightforward.

County and regional government. Will you want to go for 200-plus counties based on existing districts?

In fact MPs had agreed. A consensus had developed around 74 counties. Committee of Experts reduced to 47. The differences are so serious on the counties. Kiambu here has 10 constituencies in one county. Kakamega has nine in one county. Some counties have two constituencies. We expect 2 million people in one to country elect one Senator, and another 100,000 people in another county to elect one Senator. Where’s the equity, where’s the fairness?

Aren’t we going back to the old issue of the size of constituencies, the debate of ‘one man one vote’ versus ‘one kilometre one vote’?

Here now we are even worse. The people suffering under the ‘one man one vote’ have again been marginalised further. One Senator for 10 constituencies in one county, yet their constituencies are already 100,000 people per constituency. It’s a double-tragedy.

How will you satisfy both sides?

A marriage between the sizes and the population.

The proposed constitution provides a formula for the size versus population issue in parliamentary constituencies. Can’t the same be applied to counties?

One must be developed specifically for the counties, because it is obvious inequalities like those that bring tensions.

No other issues?

If you sort out the chapter on land, if you sort out kadhi courts by going back to agreement of 2005; sort out abortion, the issue of counties and devolution; remove these ugly and ambiguous provisions like 27(4) which if you read between the lines legalises homosexual marriage...

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How does it do that? That’s been your constant refrain on the campaigns, but the document specifically states that anyone has the right to marry a person of the opposite sex.

But is does not say that people of same sex cannot marry! Now if you go to Section 260, it defines marginalised groups as people who have been discriminated against on the basis of various issues. Combine that with Section 27(4) which says that a person cannot be discriminated against on the basis of many things including race, marital status, health, religion, ethnic origin, age etc etc; and sex!

But surely the word ‘sex’ here refers to gender and not to sexual preference or orientation? The ordinary understanding of ‘sex’ here is make or female.

If it is marginalisation, what stops a gay person from saying ‘we were discriminated’? That’s what Section 260 says. They can say they were marginalised because they are gay, on the basis of their practises, but now under S27(4) nobody should discriminate against them so they should be able to marry. It is obvious!

It is not obvious to me because the word ‘sex’ here refers to gender and not sexual practises. Now, your problem is that the constitution does not specifically state that gay people are not allowed to marry, on top of the provision that marriage is only between persons of opposite sex. You want provisions stating that gay persons are not allowed to marry or are not allowed other rights like freedom from discrimination?

You are missing the point.

One of my problems with this constitution, and all drafts beginning with the Ghai and Bomas drafts, was the tendency to include too much detail. Giving long lists of specific groups instead of broad principles, so that groups not mentioned are seen as not protected. Would you want to go further and say that persons who are short-sighted or persons who are left-handed are guaranteed certain rights or denied certain rights?

No, No, let’s be practical. If the right to marry a person of opposite sex was there without 27(4) which outlaw discrimination, it would be easy to agree with what you are saying. The section is specific on people who are marginalised. What other marginalisation in terms of sex would there be?

But ‘sex’ is not talking about sexual practises, its talking about male and female.

It’s talking about sexual practise in Section 260. ‘Marginalised group means a group of people who because of laws or practises ... were disadvantaged by discrimination ... on one of the grounds under 27(4).’

But surely ‘laws and practices’ here do not refer to sexual practices of individuals. It can only refer to a legal or societal regime that discriminates against certain groups.

You are just blocking our mind because you do want to see it. If I am a gay person, for example what stops me from interpreting it this way? Why would such a provision be there?

I still don’t get you.