MICHUKI SAYS NO

Parliament gave up trying to make changes to the proposed constitution and approved it by acclamation at 9:05pm, after a protracted tussle that lasted the whole day.

This raises the chances it will come to voters as was written by Committee of Experts and set the stage for a new rallying call for the nation; Let the People Decide. This is because it now goes to Attorney General for publishing, then handover to Interim Independent Electoral Commission, which takes it to the referendum where Kenyans will vote either ‘Yes’ or ‘No’.

President Kibaki and Prime Minister Raila Odinga walked in after 6pm, having monitored the debate on the sideline, convinced it was ending. But close to three hours later they were still in their seats, new captives to a legal exchange in the House. It was anchored on reasons why, whereas the threshold to pass amendments was a two-thirds majority, to pass the entire document required just a simple majority.

As the clock ticked towards nine, and with the House headed for a stalemate, they stepped forward and spoke in one voice, calling on the members to pass it as it is and leave amendments for another day. The President told the House: "Let us pass it, let us make that step forward. I am sure later on, when we have another occasion to amend it, you will improve on it. As of now I am very grateful to you… let is pas it as it is."

He added: "There are changes that must come in law, but they will come at their own time. Today, Kenyans want a new constitution. Let us not deny them because of a few amendments we did not succeed in making.

Perfect document

"I sat here in the gallery of this House in 1958 as a young boy when the Lancaster Constitution was domesticated. It was later amended so many times because it was not a perfect document. Even what we have is not perfect, but it is the best we have so far, better than the current one. Let us pass it and improve on it later," said Raila.

He added: "They say the test of the pudding is in the eating. Let us not deny Kenyans the opportunity to eat this pudding. It is not perfect, but it meets our requirements. The review process has been long and painful, this is a step forward, we should not hesitate to take it because of a few areas of disagreements."

Parliamentary Select Committee Chairman Abdikadir Mohammed said this was the turning point because the next step was up to Kenyans.

"The time for the ultimate decision has not come," he said. "It will be decided by the sovereign will of the people. Kenyans are informed and competent, they will make that decision."

The deadlock on amendments, over failure by movers and their backers to raise the requisite two-thirds majority, ironically gave Kenyans what they wanted. It will soon be up to you, in a referendum, to make the game-changing decision to open the door for a new constitution after 20 luckless years.

Kibaki and Raila rekindled memories of their power-sharing meeting of February 28, 2008, when they strode into Parliament in the evening to crown the day Kenya inched closer to a new tablet of laws.

Confronted by hostility to amendments and by the goodwill the country has shown the CoE document, members went into a chorus of withdrawals for the over 300 amendments on the Order Paper on Day II.

In the end Parliament beat the deadline of completing debate in 30 days as required, albeit after having debated the proposed constitution for only six days!

It was another wasted day as Parliament sat at 9am for the first time on a Thursday and by end of business had not passed a single amendment.

The closure of debate marked the landmark survival of Kadhi’s Courts, rejection of ODM’s three-tier devolved government, retention of conditional abortion based on medical grounds, and agreement Kibaki will have to consult Raila on appointments to fill positions that will be left vacant by the promulgation of the new constitution.

There were light moments as there were tense ones, top of which was a walk-out by Environment minister John Michuki, who told journalists he did not want to be associated by a constitution which he claimed could take Kenya to war. His fury was on failure to amend a clause extending to disciplined forces rights to representation by trade unions, as well as to demonstrations, picketing and petitions.

Debate closed as a window into the way Kenyans could be governed, barring alterations to the document before referendum and assuming it will pass at the plebiscite stage. Chances are Kenyans will receive an undiluted proposed constitution based on their views as collected and coalesced by CoE. Should everything go as planned, the country could have a new Constitution before the end of the year. That means most of the proposed Transition Clauses creating new offices and replacing current holders of constitutional offices could take effect by mid-next year.

New faces

Among those whose offices could get new faces are those of Attorney General, Chief Justice, Director of Public Prosecutions, Police Commissioner, Auditor General and High Court and Appellate Judges who will be leave office to pave way for vetting.

The proposed new constitution seeks to create a Supreme Court through which, those who may wish to amend the current law can seek redress. It seeks to create a two-tier Parliament, made of the National Assembly and the Senate.

Kenyans are now likely decide to if they want a pure Presidential system as proposed in the draft where Cabinet ministers will not be Members of Parliament as is the case now. Parliament will also vet all presidential appointees.

Devolved administrative units designed in the proposed draft depart slightly from what was contained in Bomas Draft. Whereas the later sought a three-tier system of government as recommended by ODM this week, the current draft will have two levels. The country will likely have the national government run by the President and his running mate, the Cabinet, the Senate, and National Assembly.

The 47 counties will be run governors and their deputies who will be elected directly by the people and county Executive Committees to manage devolved resources.

It provides Kenyans a wide range of the Bill of Rights borrowed from international statutes. Among them is the right to life and all fundamental freedoms, equality and freedom from discrimination. Human dignity, freedom of expression, religion, belief and opinion, freedom of the media, access to information, freedom of association, political rights and protection of property are among many other guarantees provided in the draft.

"I thought I should let you know that I don’t want to be party to the creation of chaos in this country," Michuki told journalists. He warned that allowing the military the right to strike would make them worse than terrorists because they are trained and have the guns.

Michuki’s protest came a day after MPs from Central Province walked out to defeat an ODM-sponsored amendment seeking to create a three-tier system and 25 regions.

Mvita MP Najib Balala attempted to return the motion to the House on Thursday and again failed to raise the numbers as only 123 MPs were present.

Other amendments trashed included size of land ownership.

The ‘technical’ walkouts witnessed on Wednesday deliberately meant to deny the House the 145 ceiling before votes on amendments are taken.

Proposed amendments on Land supported by Rift Valley MPs received a negative vote after one of the walkouts. Agriculture minister William Ruto supported the amendment moved by Chepalungu MP Isaac Ruto.

They sought to expunge a Clause that allows Parliament to set the ceiling on the acreage of land that an individual should own. "In effect we are saying that a title deed means nothing and that it is merely a piece of paper. That will discourage investment in land," argued Ruto.

The document still bears the recall clause for MPs deemed ineffective by his or her constituents mid-term. Should any of the 356 proposed amendments passed; the draft could have been returned to the CoE and the Reference Group to refine it.