The Proposed New Constitution of Kenya...my take!

I am a journalist. And it’s not that I realised that just today or even this week. I’ve known it all along. And cynicism is part of this business. I find it sad that inane patriotism and the induced ‘fatigue’ –in the quest to get a new Constitution—is blurring debate on the minefields in the proposed Constitution.

Well, first, let me declare my interest. But as I do, let’s all look at the merits of my arguments and let’s debate soberly. It is unwise to take a high moral pedestal as if the proposed law is Kenya’s ‘heaven’ and those calling for it to be amended before we vote on it are ‘agents from hell’.

Anyway, I’ll not support a blanket ‘Yes’ vote on the proposed law, when the Attorney General publishes it next-week-but-one.

Why? I can’t say all my reasons in one-go. I’ll give you a little every day. But a little background is in order.

I have covered the journey for a new law since Parliament amended the current Constitution and inserted section 47A into our laws. At around that time, the Constitution of Kenya Review Act, 2008, drawing the schedule towards a new Constitution was also passed.

Then the Committee of Experts came into play. On November 17 last year, just two days before I left Egypt’s Cairo for Kenya’s Nairobi, the CoE unveiled what they called a harmonized draft Constitution.

After that, the public had 30 days to give their input. I was back in the country and I reported every input on nearly every chapter in the draft.

Then, it was handed to the Parliamentary Select Committee on Constitution Review, and this team went to Naivasha’s Great Rift Valley Lodge. I was there—commuting every day to write the story. Sometimes, I thought it was all rumour, but after looking at the Hansard, I feel vindicated.

The PSC members agreed and if the referendum was called then, it would all be fine. The new Constitution would have passed with nigh-unanimity –save for few Christian voices—that kept on calling for the abolition of the Kadhi’s court.

The CoE then took the draft. They messed with the political settlement reached by the PSC, just because, as per the law, they are the “custodians” of the views of the public. Okay, that’s that! It’s done. It’s now water under the bridge. The ‘thing’ came to Parliament on February 23, 2010, and was tabled on March 2 in the House.

I covered all the retreats, all the debates, both formal and informal, all the politics of the Constitution alongside reading the draft and listening to the arguments. It is my conviction, that unless the public is given time to decide on the contentious issues, then it’ll be difficult to call it a ‘Kenyan document’, it will, like the one made in Lancaster House, be called the ‘CoE document’ or is it ‘Delta House document’.

I challenged fellow journalists in the biggest media house in sub-Saharan Africa into a debate into the ‘Yes’ and ‘No’ arguments. But unfortunately, other than a condescending reply calling me ‘youngman’ and another one telling me that “Britain has no Constitution’ only George Omondi, he who reports for the Business Daily seems to have seen my ‘point’.

The discussion ‘died’ and the issues raised were not even touched. Luckily, an editor saw that I was “looking beyond the referendum” and ran with a splash looking at the options to stop a divisive referendum. But then, lawyers were interviewed for the story and that was it! Oops.

The following day it was back to what politicians and churches said. No attempt to analyse the merits and demerits in the arguments. And that’s what’s going on.

Sober debate and sometimes not-so-sober grandstanding and name-calling is restricted to the ‘opinion pages’, the ‘letters to the editor’ can show where the winds are blowing. Forget the subjectivity in this.

So with that background, let’s discuss. If you don’t agree with me, fine. Tell me why you think this proposed Constitution is a matter of life and death. Or why you think I am simply obtuse and just a man afraid to take risks.

But tell you what? The media pushed Moi out in 2002 in favour of Kibaki. We’ve spent eight years lamenting about that new word “impunity” in government. I am not willing to “forever keep my peace.” I’ll point this out, now! If the Constitution is endorsed, well and good. When the complaining begins, I’ll remind you that I raised a red flag.