Sunday, February 19, 2012

How Uhuru, Ruto tried to water down integrity law in Naivasha



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By EMEKA-MAYAKA GEKARA gmayaka@ke.nationmedia.com
Posted  Saturday, February 18  2012 at  21:45
On January 18, 2010, Budalang’i MP Ababu Namwamba made probably one of his most eloquent speeches never published.
Addressing the Parliamentary Select Committee on the Constitution in Naivasha, Mr Namwamba drew from the history of the writing of the American constitution to underline the magnitude of the job at hand.
Quoting inspirational leaders like Patrick Henry and John Adams during the writing of the US constitution in 1787, Mr Namwamba appealed to the Parliamentary Select Committee (PSC) members’ sense of patriotism, selflessness and compromise as they embarked on a similar task.
The youthful ODM MP ended with the words of Mr Nelson Mandela when he walked out of the Robben Island prison:
“He told the people of South Africa: ‘Sometimes it falls on a generation to be great. You can choose to be that generation.’
“It has fallen on the 27 members of this committee to break the jinx of giving this country a new constitution.
“We can choose to, finally, be that PSC that broke that jinx and gave this country a document they can be proud of today and to posterity.”
Among the eminent Kenyans in that room were Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto.
Though Mr Ruto would later lead a countrywide campaign against the document, the Naivasha team reached a compromise which resulted in the enactment of one of the most progressive constitutions in Africa.
One of the defining features of the Constitution is Chapter Six on leadership and integrity, which now threatens the careers of Mr Kenyatta and Mr Ruto.
The two politicians have been indicted by the International Criminal Court for crimes against humanity related to the 2007/8 post-election violence.
Justice minister Mutula Kilonzo is categorical that with the charges hanging over them like the sword of Damocles, the two should forget running for president unless they are cleared by the ICC.
The barrier? Chapter Six and Article 10 of the Constitution, which articulate national values and the principles of governance. They are the major hurdles between the suspects and their State House dreams.
Chapter Six is the moral anchor of the Constitution. Ironically, while in Naivasha, Mr Kenyatta and Mr Ruto made a spirited attempt to water it as well as Article 10 down.
Had it not been for the ingenuity of PSC chairman Abdikadir Mohammed with the support of Lands minister James Orengo, critical chunks of the chapter would have been deleted at the instigation of the two.
The chapter was discussed in less than 30 minutes as the impatient MPs hurried for lunch. The sticking point was No 91 of the chapter which deals with the conduct of state officers.
Part of the section reads: “A person who contravenes this chapter shall, in accordance with the applicable disciplinary procedure, be dismissed or removed from office or disqualified from running for office.”
Mr Ruto argued that this would complicate the lives of state officers and suggested that it should be deleted.
Though ICC prosecutor Luis Moreno-Ocampo had not mentioned the two in connection with the violence, their names had featured in a report of the Kenya National Commission on Human Rights.
“We do not have to carry everything just because we want to look good. What we have done so far is okay, but 91 is obnoxious.
“I think let us just delete 91 first,” Mr Ruto said. Mr Kenyatta seconded him, saying: “In No 89, you have given all the guiding principles including integrity.
“That is all you need if at all you are to retain anything. The rest of that chapter is completely unnecessary.”
But Mr Mohammed and Mr Orengo rejected their argument. The Mandera Central MP pleaded for retention of the chapter “in view of our history. I am very strongly against deleting.”
Mr Ruto agreed. And when the chairman sought approval for the whole chapter as amended, Mr Ruto seconded. It was adopted.Mr Orengo described it as a “very important” chapter. The compromise? Mr Mohammed suggested that Sections 91 to 93 be reorganised.
A review of the Constitution shows that in recasting No 91, the committee of experts seemed to have ignored the Naivasha suggestions and retained its letter and spirit now residing in Chapter Six of the supreme law.
The chapter would return to haunt the two politicians two years later.
However, the Naivasha group managed to secure a clause stressing that the state officers accused of crimes should remain in office until they have exhausted their right of appeal.
Apparently, this is the line adopted by Attorney-General Githu Muigai in defence of the accused following public calls for their resignation.
On another front, Mr Kilonzo has indicated that MPs allied to Mr Kenyatta and Mr Ruto have sent signals that they will block a proposed law on ethics.
There is fear that, if adopted, the law, meant to operationalise the chapter, might lock the suspects out of the presidential race.
At Naivasha, there was also a battle over Article 10. While Chepalungu MP Isaac Ruto declared that the national values should not be in the Constitution, his Eldoret North counterpart argued that the number be limited.
“Let’s just have values and remove the rest, because it may not help us much. And let us limit them to a reasonable number — say five or six.”
The accused have vowed that their names will be on the ballot, arguing that nothing in the elections law bars them from seeking the presidency.

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