President Kibaki and PM raila Odinga meet the clergy   Photo courtesy

It will be great if at least 80 % of Kenyans - if not all of us - close ranks and cross the finish line together with a strong YES for a new constitution. The committee of experts (CoE) and parliamentary select committee (PSC) have done their part. Although parliament failed to improve the document, this draft, if approved, will still be a step forward, save for its inherent poison pills.  

It is unfortunate that this process has turned more political as parties and the high in society  play to the public gallery for political expedience. The president has been lukewarm in endorsing the draft, perhaps being cautious. The Prime Minister, on the other hand, has taken a more vigorous approach to push for a YES vote. He has ruled out any room for a negotiated settlement on the most contentious issues- saying it is too late. Perhaps more telling is his latest statement that there can never be an agreement with those opposed to the draft, particularly Non-Muslims. He is in essence signaling yet again that opinions of majority of Kenyans don’t matter, especially given the big constituency of Christians or non-Muslims who are ready to vote YES.  

The hard-line position taken by the PM is reminiscent of the Orange Democratic Movement's  stand in 2005, when, ironically, he opposed the WAKO draft. We used to be told that Minister Odinga had read the document and all we had to do was to follow his lead and reject the document. This time around, we appeal to ALL Kenyans to READ and understand the draft; to make informed decisions individually and collectively and avoid the pitfalls and polarization that was a precursor to the post election violence in 2007/2008. 

We cannot allow the process to trump common sense, deny majority the right to be heard, prevent an otherwise good document from becoming law or political gamesmanship and demagoguery to get in the way of the people’s wishes. Out of 135 amendments proposed in parliament to improve the document, none saw the light of day. It is wrong for people’s representatives to be denied a chance to improve the people’s constitution through unduly restrictive rulings. 

Why did the speaker require a super majority (65%) in parliament to pass an amendment for the draft while the draft itself would only need a 51% to pass; shouldn’t it be the other way round? Did the “CoE” and PSC who are not necessarily representative of any major constituency undergo similar prohibitive restrictions? It is a shame to hoodwink Kenyans to agree to a flawed document in anticipation of amendments. Why not get it right this time round? This would be my approach to solve the stalemate: 

Kadhi Courts:

First, the drafts got it wrong the first and second time by stating that “state and religion shall be separate” and that there “shall be no state religion” but simultaneously made Islam the de facto state religion through the Kadhi courts. Believe it or not, to NON MUSLIMS, that is what it amounts to. It is not so much that Kadhi courts prevent Christians from being Christians. As a matter of principle and equity, all religions must be accorded equal access, protection and treatment under law. Non-Muslims have clearly been shortchanged. To fix this, let’s set aside the restrictive sausage making “process” and adopt the WAKO MODEL in 2005 when he provided in the draft as follows:  

The subordinate Courts are – (a) the magistrates’ courts, Christians’ courts, Kadhi’s courts, Hindu Courts and Other courts (WAKO DRAFT CAP: 13 § 179 (3) (a)). 

This will not only placate the Non-Muslim concerns about the preferential treatment of the Kadhi courts but also inoculate Muslims against unfair attacks. Muslims would be well advised to stand in solidarity with Non-Muslims to fix this once and for all. This is where the means justify the end. It certainly beats “mass action,” harms nobody and brings erstwhile raucous demographics closer together.

Bill of rights: 

My only worry is that this chapter  falsely sets up a utopian facade way far from reality hence setting  the country on a dangerous collision course with itself. Kenya is still a poor country and promising millions a set of rights including Free Healthcare, Education, Housing, Food and Social Security is simply unrealistic. 

Nobody disagrees that all these would be nice to have but this is unrealistic. A crafty attorney or frustrated Kenyans will take to the streets demanding their “RIGHTS” from the government. Remember the chants " Haki Yetu!" by stone throwing youths while destroying property during post election violence? Well, multiply that tenfold, only this time they will have the full backing of the constitution. We are shooting ourselves in the foot!

While we examine these issues, let’s also be amenable to incorporating some common sense provisions in this document to appeal to most Kenyans. The legislature needs numerical limitations. Affirmative action must be done away with. National office bearers including the AG must be subject to recall if they fail to perform. The President should be allowed to exercise line item power to streamline efficiencies and effectiveness of legislation enactment. 

Finally but not least, this must be the people’s document, let’s shoot for at least 80% approval by Kenyans. Anyone who believes that 51% is a win for either camp is thoroughly fooling himself, it would be a colossal failure which will leave the country divided for generations, let’s get this thing done right this time; it is not that hard, trust me.

By David Ochwangi.