(This is a longer version of an article published in "Business Daily Africa", Nairobi on 8 February 2008, under the title "
Democracy comes in steps not a leap".)
Could a ‘Yes Win’ in the 2005 Referendum have saved Kenya from violence, killings and mayhem? I know that this may be an unorthodox question to ask currently but in times of crisis one needs to take the less travelled road in search for answers. Both the proponents and opponents of the 2005 draft constitution (Wako draft) agreed that it was not 100 per cent perfect. They conceded that there were some contentious issues that required to be worked out. The estimates were that the draft was 80 per cent good or better than the current constitution. But instead of focusing on what united both sides, the divisive 20 per cent became the focal point. The result was the rejection of the draft and a stalemate.
Since then, political life in Kenya has been characterised by this stalemate and the current standoff is its culmination. The confrontation has reached its apex and a climb down by all parties is necessary.
I think that there are lessons to aid them from the 2005 referendum.
The first lesson is that there are no perfect constitutions and a perfect constitution may not always work in practice. Constitutions are shaped by political and social-economic factors of the time. A perfect constitution remains an ideal and utopia to be achieved. The 2002 draft constitution (Bomas draft) is such an ideal. The referendum (Wako) draft was a major step to the ideal. It resonates with the saying that ‘if you want to land on the moon aim at the stars’.
The second lesson is that democracy is incremental. If in 1992 Kenyans had rejected the amendment to the constitution to reintroduce multiparty politics the democratic opening in the society then could not have been achieved. Similarly, if the 1997 inter-parties compromise had not been embraced by both sides the success of 2002 election could not have been possible. These were not perfect solutions but they advanced democracy, democratic institutions and society in general. In fact, the past five years was a period that the country enjoyed most freedoms in the history of the nation’s independence.
The rejection of the 2005 draft constitution denied the society and democracy an opportunity to advance. It rejected a Bill of Rights which was far superior to the rights and freedoms in protected in the current constitution.
More significantly, the draft constitution contained advanced provisions on matters core to the current political crisis and which could have steered the country out of the impasse. These provisions were similar if not verbatim to the Boma’s draft. I draw attention to a few key provisions below.
The Wako draft contains an important provision on a fair election Article 101(e). According to the provision a fair election means:-
1) free from violence, intimidation, improper influence and corruption,
2) conducted by an independent body,
3) administered in an impartial, neutral, transparent, accurate, efficient and accountable manner.
The provision would have been crucial in determining whether the 2007 election was fair and free.
The independent body referred to above is the electoral commission. Article 109 of the Wako draft establishes the electoral and boundaries commission and stipulates its functions, duties and powers among them the efficient conduct of elections and referenda. Under Article 273, the composition of constitutional commissions, which the electoral and boundaries commission is, members are to be appointed by the president with approval of parliament. This provision reduced the powers of the president as is contained in the current law where the appointment of the members is the sole prerogative of the president. Under the Wako draft constitutional commission are independent and not subject to direction and control by any person or authority and shall be impartial and perform their functions without fear, favour or prejudice.
The judiciary has come under a ferocious criticism from the opposition as a Kibaki instrument, stacked with his own political appointees. The current constitution gives the president the exclusive powers to appoint the chief justice. As regards the judges the president appoints them under recommendation of the judicial service commission. As such, the president has the final say in the appointment. But whether the judges are under his direction is another question as they enjoy tenure of office which limits the powers of the president to sack them. Under the Wako draft, the president appoints the judges under the advice of the judicial service commission and the approval of the parliament. In this arrangement, the power to appoint the judges is shared between the president and the parliament. Judges appointed under this procedure are deemed impartial and independent because they are not direct appointees of the executive. It is probable that if the Wako draft had been approved, the lack of confidence in the judiciary could not have arisen and the election dispute could have been referred to the court for arbitration. The Wako draft is similar to the Boma’s Draft on this issue.
The swift swearing in of the president after being declared the winner of the 2007 election by the electoral commission was criticised although it was not illegal under the current laws. The Wako draft, however, had a provision that could have cured the anomaly by prescribing an orderly transition after the election. Under Article 151 of the Wako draft on assumption of office of president, the president assumes office a) on the first Tuesday following the twenty one days after the date of the announcement of the results of the presidential election by the Electoral and Boundaries Commission; or b) within seven days of the determination by the Supreme Court of the election petition filed under Article 150. Article 150 provides the procedure to follow in filing a petition objecting to the validity of election of the president-elect. The petition shall be filed within seven days after the date of the announcement of the results of the presidential election by the Electoral and Boundaries Commission. The Supreme Court shall, within seven days of the filing, determine the petition.
The provisions on transition after the election stipulated in the Wako draft could have avoided the clumsy manner in which the swearing in of the president-elect was done. The draft clearly stipulates the time frame of events leading to assumption of office by the president-elect which allows for orderly transition and for disposing off any legal challenge to the validity of his or her election. The Wako draft provision was far superior to the Boma’s draft that did not give timeframe to events leading to assumption of office by the president-elect. The Boma’s draft states that the person elect assumes the office of the president ‘… on the date when the term of office of the incumbent President ends’. The provision is vague and does not take into consideration any legal challenge that may be mounted.
Finally, Wako draft and Boma’s draft had similar provisions on the procedure at presidential election in Article 149 and Article 157 respectively. These provisions lay down the procedure in case a re-run of presidential election was necessary. Article 149 (4) states that ‘the candidate for President who receives more than fifty per cent of all the votes cast in the election and who, in addition, receives a minimum of twenty-five per cent of the votes cast in more than half of the districts shall be declared elected as the President.’ Article 149 (4) says further that, If a candidate is not elected, a fresh election shall be held within twenty-one days of the previous election and in that fresh election, the only candidates shall be – (a) the candidate who received the greatest number of votes; and (b) the candidate who received the second greatest number of votes, and the candidate who receives the greater number of votes shall be declared elected as President.
It is abundantly clear that this provision was a saving clause in case no candidate garnered the required fifty per cent votes. In the current stalemate both Kibaki and Odinga did not meet this required and a re-run would have been the option rather than the current legal vacuum.
In short, there were many positive democratic victories that were lost when the baby was thrown out with the bath water in the 2005 referendum. Political expediency rather than national interests dictated the choices fed to the populace by the political elite and civil society. Simply put Kenyans were duped in the 2007 referendum that the Wako draft constitution was no good and should be rejected. That decision has come to haunt the nation with dreadful consequences. In hindsight, Kenyans should approach the current dialogue with an open mind and should not reject major victories because the whole battle is not won.
Preserve the energy for future victories not war and mayhem.
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NJOKI NDUNGU'S WITNESS SUBMISSION TO US CONGRESS
"Further, politicking and posturing on narrow agendas, such as the contentious MOU[4], rather than focusing on national interest, led to the rejection by oblivious Kenyans of the new draft Constitution in 2005, who threw away its proposed new structures for power sharing between a President and Prime Minister, the reduction of presidential powers, increased parliamentary vetting of public appointments and institutions to deal with the land question, devolution of resources, and addressing the inequalities of the marginalized.
If that Constitution was in place, the tragedy of the last few weeks would have been avoided."
