Jennifer Muiruri | NATION Committee of Experts Chairman Nzamba Kitonga says although the implementation process is on course, the biggest test for the new Constitution will be next year’s General Election.
By MURITHI MUTIGA mmutiga@ke.nationmedia.com
Posted Saturday, August 20 2011 at 22:00
Posted Saturday, August 20 2011 at 22:00
IN SUMMARY
- CoE boss says although major parties had put up a fight in the process, years of failed attempts had made them weary
Luck, dogged diplomacy and the fatigue of the key players involved in the process. Those are the factors that Committee of Experts (CoE) Chairman Nzamba Kitonga says helped to break the cycle of failure that had dogged the review process since the 1990s to see the nation achieve a new Constitution one year ago.
In the euphoric celebrations that followed the endorsement of the fresh set of laws at the referendum, it was easy to forget that the effort to craft a new law came close to collapsing due to the entrenched positions of various players.
By the time the Committee of Experts was appointed in February 2009, the two main political parties were far apart on the core issue of the structure of the Executive in the new dispensation.
The Orange Democratic Movement (ODM) wing led by Prime Minister Raila Odinga wanted a parliamentary system of government featuring a PM with substantial power.
The Party of National Unity (PNU) whose negotiators were allies of Deputy Prime Minister Uhuru Kenyatta demanded a pure presidential system.
Complicating matters was the disunity within the parties. In particular, the ODM group led by Eldoret North MP William Ruto advocated a three-tier system that would have a presidential system of government but with the powers of the president checked by powerful jimbos (federal units) loosely based on the old provinces.
Under pressure
With less than three months to go before the referendum, none of the parties appeared willing to budge, and the CoE was under pressure to come up with a draft that would accommodate as many views as possible.
In this divided environment, the nation was probably lucky to have in Mr Kitonga a figure that commanded the respect of all sides and was not perceived as backing any political or ethnic interests.
The CoE managed to avoid the political divisions that doomed past review efforts and cut a middle path that helped to soothe the fears of the radicals on all sides. The ultimate draft, which they put to the nation was a moderate yet progressive package that easily gained a majority at the referendum.
In an interview on Thursday, Mr Kitonga said the fact that the various players had grown weary of the seemingly endless effort to write a new Constitution was a key factor in helping to drive the process forward. But he said there were anxious moments when the divisions between players seemed too wide.
“There was great uncertainty on whether we would achieve a breakthrough just before MPs retreated to Naivasha to discuss contentious issues. The key political and religious interest groups were all advancing different positions and it was quite difficult negotiating an acceptable compromise. Despite these difficulties, we were able to bring most of the country on board although I still regret that the church was not with us as we were overcoming the last hurdle despite having been with us from the start towards a new Constitution.”
Mr Kitonga says he is reasonably satisfied with the implementation process so far but adds that the country could have done better if it were not for the politicians’ instinct of doing things at the last minute.
Some have expressed fears that the philosophical clashes on the extent to which the country should decentralise such as that witnessed between the ministries of Finance and Local Government will roll back the gains written into the law. Mr Kitonga differs:
Go to court
“It will be futile for bureaucrats to attempt to derail the implementation process or to draft legislation that is not in line with what was intended. The good thing with this Constitution is any time citizens feel aggrieved with the implementers they can go to court and press their case. The people wanted county governments and they wanted them to have substantial authority because they are the unit of government that touches their lives every day.”
Mr Kitonga says citizens should not worry too much about the cost of implementing the new law because the ultimate benefits will outweigh the costs.
“It will cost money to establish counties and get them up and running. But they will become units of production, which is a break from the past when districts just existed. All over the country groups have been meeting to draw up development plans for their counties. There is huge potential there. I was in Ethiopia recently and the hosts pointed out that the benefits of devolution were most visible outside Addis Ababa. It is amazing how the capitals of the various federal units have grown since they embraced federalism. They have become mini-capitals. That is the long term view we should take.”
And while Mr Kitonga says the implementation process is on track, he argues that one of the biggest tests for the new Constitution will come when Kenyans go to the ballot next year.
“When drafting the law, we intended that we should never go back to where the country was in 2008. No Kenyan’s blood should be spilt because of elections. We have created the infrastructure for a clean election. There can be no doubt about the winner of the poll because of the threshold written into law. But that is not enough. Now a great responsibility rests on the shoulders of the politicians and Kenyans to behave responsibly and help open a new chapter in the evolution of our democracy.”
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