From Jaramogi through Wanjiku to a new dawn

Calls for a new constitution may have started with multi-party crusaders such as Jaramogi Oginga Odinga and George Anyona who pushed for the end of Kanu’s political power as the only de-jure political party.

However the more relentless push for a new constitution took a clear shape after the 1997 general elections. Opposition politicians and civil society activists joined forces to demand a new constitution, mainly galvanised by their collective resentment to Kanu’s dictatorship. This gave birth to the phrase a “people-driven” constitution or a document for ‘Wanjiku.”

The push however lost momentum when a split emerged in the opposition ranks over the control of the process. Using its new-found political marriage of convenience with Raila Odinga’s National Development Party (NDP), which guaranteed a slight majority in Parliament, Kanu pushed through the appointment of commissioners to collect and collate views from Kenyans about the constitution they wanted.

It happened after Mr Mwai Kibaki, who was the Official Leader of the opposition in Parliament, spearheaded a boycott of the debate on the matter. The opposition went ahead to form a parallel commission chaired by Dr Oki Ooko Ombaka —he died in 2002— dubbed the Ufungamano Initiative while the government- backed one was headed by Prof Yash Pal Ghai.

The merger between Ufungamano and the statutory Constitution of Kenya Review Commission (CKRC) began in November 2000 and negotiations were completed in March 2001, resulting in the appointment of Dr Ombaka to deputise Prof Ghai in the now expanded team of 27 commissioners.

Former President Daniel arap Moi appeared to place hurdles in the way of the new team when in April 2001 when he dismissed Ufungamano’s 12 appointees as lacking the mandate of Kenyans. Hopes that a new constitution would be in place before the 2002 General Elections were dashed on April 5, 2002 when a task force headed by commissioner Githu Muigai found that the commission would not be able to complete its task before the polls.

CKRC had by this time gone round the country collecting views from the public on the constitution they wanted. A Draft Constitution was being compiled and was to be discussed by over 600 delegates from all corners of the country at the National Constitutional Conference.

The review process suffered another blow in November 2002 when President Moi dissolved Parliament the weekend before the National Constitutional Conference was to start at Bomas of Kenya. The push for a new constitution resumed in March 2003, three months after President Kibaki defeated the Kanu candidate, Uhuru Kenyatta, in the 2002 general elections.

But in no time, the Ufungamano team headed by Gachoka MP Mutava Musyimi warned of attempts by the new government to hijack the review process from ‘Wanjiku.” It was not until March 23, 2004 that the National Constitutional Conference, better known as the Bomas Conference, concluded its business of discussing the findings of CKRC.

The process was handed back to the Ghai team to prepare the draft constitution for publication. Fresh obstacles were placed on the road to the new constitution when Parliament pushed through an altered version of the Bomas draft by a vote of 102 to 61.

The altered version of the Bomas draft was the product of a retreat in Kilifi, attended by members of the Parliamentary Select Committee on the constitution chaired by then Nyaribari Chache MP Simeon Nyachae. The new draft became known as the Kilifi draft.

While the Bomas draft transferred much of the power vested in the presidency to a newly-created post of Prime Minister, the Kilifi draft allowed for a powerful head of state and a prime minister with little executive authority. The decision to alter the Bomas draft arose from differences in the Narc government, with Mr Odinga’s Liberal Democratic Party (LDP) insisting on a powerful premiership while President Kibaki’s wing was for the retention of an executive presidency.

The standoff prompted Mr Odinga and LDP, supported by retired president Moi and Kanu to successfully push for the rejection of the document during the November 2005 referendum. President Kibaki hit back by firing Mr Odinga and his LDP colleagues from the Cabinet.

Following the formation of the National Accord after the near-civil war over the disputed 2007 election results, President Kibaki and Mr Odinga prioritised the new constitution being one of the Agenda 4 reform items. The renewed urgency led to the formation of the Committee of Experts to steer the process, resulting in the Naivasha retreat where the CoE report was debated and adopted.

Differences arose when it was taken back to the CoE with a section of politicians accusing the Nzamba Kitonga-chaired team of sneaking new material into the document. Parliament however failed to push through any single amendment to the document when it was finally tabled by the PSC chairman, Abdikadir Mohammed in April, forcing Attorney General to publish it without any alterations on May 6 this year.