Dr. Ekuru Aukot, Director, Committee of Experts on Constitutional ...

<strong>Dr</strong>. <strong>Ekuru</strong> <strong>Aukot</strong>,
<strong>Director</strong>, <strong>Committee</strong> <strong>of</strong> <strong>Experts</strong> on Constitutional Review

1. Introduction
(a) What is the factual/legal reality <strong>of</strong> constitutionmaking
in Kenya today?
Agenda 4: Long-term institutional Reforms
Are we going to Samarra according to Mutahi Ngunyi?
(b) Will the Review Act, 2008 ALONE deliver a new
Constitution?
VESTED INTERESTS v. LAW
2. Some ideas on a winning formula
Role <strong>of</strong> the Reference Group in that formula
3. The Opportunities/Challenges/Proposed Result areas
The role RG can play
4. Conclusion

1. Do we have a constitutional moment or opportunity?
- Kenyans need a constitution
-the process is time-bound
2. The CoE is not replicating the work <strong>of</strong> CKRC
-Can EVERYONE really write a constitution???
-The process thus far has been very expensive
- CoE should not be another GUZZLER committee
- 20-Year old quest for a constitution?

3. CoE needs support re “successful processes”: SA,
Eritrea, Uganda, Bougainvillea, Colombia, Bolivia,
Venezuela, Fiji, etc.,
4. A formula must be found to complete the Kenyan
constitution-making process
5. Formula includes not just writing a constitution but
how to complete & how to balance interests without
killing the process (media & other groups,
women/coast CSOs/Political parties/ Religious)
6. A Constitution is not a shopping list <strong>of</strong>
needs/problems

The ROLE OF POLITICAL PARTIES IN THE
2005 referendum period
Current process kick-started by post election
violence
ToRs for CoE/ALL should derive here!!!
The 4 agendae & Agenda no. 4: 2 Laws
The Constitution <strong>of</strong> Kenya Review Act, 2008
The Constitution <strong>of</strong> Kenya (Amendment Act), 2008
Sections 47A & 60A

Stage 1:
Enactment on 4 th November 2008
Presidential assent on 11 th December 2008
Stage 2:
Commencement <strong>of</strong> the Act (14 days after assent by Publication in
Kenya Gazette on 22nd Kenya Gazette on 22 December 2008 (S.1 & s.28)
nd December 2008 (S.1 & s.28)
Statute Law (Miscellaneous Amendment) Act, 2009
Establishment <strong>of</strong> PSC on the Review <strong>of</strong> the Constitution (S.7)
“Regional & gender balance” v. Party politics?
Split between ODM & PNU
Stage 3: Appointment <strong>of</strong> CoE (part II, Review Act)
K<strong>of</strong>i Annan Team forwarded 5 names to PSC within 14 days <strong>of</strong>
commencement i.e., by 8 th January 2009

PSC to advertise positions within 14 days, i.e., by 8 th
January 2009
Applications within 21 days i.e., 29 January 2009
PSC to shortlist & Interview & Forward names to
Parliament within 7 days, i.e., 5th Parliament within 7 days, i.e., 5 February 2009
th February 2009
Parliament to consider/forward names to Minister
for Justice (no time provided); Parliament approved
names on 11 th February 2009
Minister to forward names to President
President to Appoint within 7 days

1. S.23 generally & specifically on Identification
<strong>of</strong> Contentious & non-contentious issues by CoE
& preparation <strong>of</strong> report & harmonized draft
constitution
2. Publication <strong>of</strong> harmonized draft Constitution
for 30 days & incorporation <strong>of</strong> comments from
Public
3. Consideration by PSC including re-drafting by
CoE
4. Presentation & Approval by Parliament
5. Parliament submits draft to AG

1. A.G. publishes within 30 days <strong>of</strong> receipt from
Parliament
2. CoE to facilitate conduct <strong>of</strong> civic education
for 30 days
Are 30 days enough???
CoE sees the role <strong>of</strong> NORAF here
3. IIECK to conduct referendum within 60 days
<strong>of</strong> publication <strong>of</strong> Bill by A.G.

1. The CoE (s.8 & Part II generally )
S.16: independence <strong>of</strong> CoE & s.24, s.25
S.23: functions <strong>of</strong> CoE
2. The Parliamentary Select <strong>Committee</strong> (s.7)
3. The National Assembly
4. The Referendum
5. The Reference Group/Reference Council???
Any room for co-option <strong>of</strong> e.g., SUPKEM?

THE ROAD MAP TO THE NEW
CONSTITUTION
With challenges/obstacles

Considering all the documents <strong>of</strong> the CKRC
Considering all the previous draft documents
Considering the documents that emerged after
the Bomas draft
Considering all other relevant circumstances
and reports
Considering the views <strong>of</strong> the public on what
they thought as being contentious
Taking cognizance <strong>of</strong> the 2005 referendum,
post election violence and the National Accord

1. The Executive & Legislature (System <strong>of</strong>
Government)
2. Devolution <strong>of</strong> Powers
3. Bringing the Constitution into Effect
Additional Issues
• Land
• Kadhi Courts
• Same sex marriages

1. By Considering Public Views
2. Through Thematic Consultations
3. Sectoral Consultations
Political parties
Religious groups
Civil society
Private sector
4. <strong>Experts</strong> Engagement
5. Internal discussions & Agreement by
Consensus by COE
6. Consultation with Reference Groups

Section 4 <strong>of</strong> the Constitution <strong>of</strong> Kenya Review
Act, 2008 (Sets out the object and purpose <strong>of</strong> the
Review <strong>of</strong> the Constitution)
Section 6 <strong>of</strong> the Constitution <strong>of</strong> Kenya Review
Act, 2008 (Sets out the principles and Values that
will guide the Review Process )

(1) Strike a relationship with politicians and not
just bring them on Board
An objective/partnership approach
(2) Politicians are human beings who do not
want to fail/want to be associated with
success
Our structures/organs seek to support you at the
constituency/National levels
Public participation program to involve/carried out
by politicians
Lastly: “Marry the politicians”

The important component is the process hence
different approaches to CE/PP:
(1) Public Awareness <strong>of</strong> process & substance
(A) Let ALL know the process is on & What process
is being followed (e.g., on timings, etc.,)
(B) CoE does not assume that people do not know
because they know. In fact,
(i) ordinary people are more eloquent on
constitutional issues from their life experiences
(ii) <strong>Experts</strong> speak from text book knowledge and
in constitutional law terms

(d) Use agencies <strong>of</strong> credibility because in
many cases people do not know the CoE
E.g., RG, Political parties/CSOs etc., have structures
in the area
CoE is a new creature <strong>of</strong> a 9-month old Statute
Who in Kenya today can boast <strong>of</strong> a tangible
constituency?
How politicised are those constituencies?
Get to the people who will get to the people
It is not possible to reach all 35 million people
Can political parties reach the 35+ million Kenyans?

Some techniques/tools:
Catchy slogans
e.g., in SA, 11 languages ‘one people one nation’
In Kenya, are 42 tribes, and hence one Nation?
Inclusion: The Yakku, Boni, Awer, Malakote,
Galjaeel, Sengwer, Endorois, etc., are also Kenyans,
Question: Was the ‘Kalenjin’, ‘Gema’, ‘Kamatusa’, etc.,
political tribes?

To be carried at various levels:
(a) Radio stations-Local FM stations
Politicians like to be on radio/TV
It is a win-win situations
The FMs, IQRA, Rahma, Salama, Waumini FM,
Family TV/FM, Hope FM, etc.,
(b) Sectoral meetings
(c) TV programs
(d) Target groups in rural economies
Children debating on constitutional issues

Who are the drivers <strong>of</strong> change?
The TWO PRINCIPALS: Prime Minister/President??
The Reference Group?
The CSOs/NGOs??
Religious groups?
Women groups?
POLITICAL PARTIES
Kenyans/”wanjiku”/<strong>Experts</strong>??
They must underwrite the finalization <strong>of</strong> the
constitution-making process

The drivers from behind the scenes but with
various hats
Technical <strong>Experts</strong>
Pr<strong>of</strong>essionals
Kenyans/Africans who care
We do not take our work lightly...
Pool <strong>of</strong> technical experts
Are you in that Pool??
WE ARE JUST AT THE TAIL END OF PROCESS!
CoE/RG/CSOs/Political parties to remember
that this is about the people

Introduction
7 Key result areas
Structure <strong>of</strong> the Secretariat
Budget

(1) To help the CoE achieve its objectives &
finally deliver on its mandate;
(2) As a medium via which the CoE interacts
with Kenyan public, MEDIA, political parties,
religious groups, CSOs & other stakeholders
during this process
(3) As its core operational/project document
(4) Do political parties, Media, religious
groups, CSOs, etc., have a role to play?

That Political parties can interact with:
1. Finance & Administration
2. Civic Education, Mobilization & Outreach
3. Public Infromation & Media
4. Research, <strong>Dr</strong>afting & Technical support

Part 1: the Introduction & background revisits
summarily the political context & outlines the
functions <strong>of</strong> the CoE & Reference material
Part 2: the structure <strong>of</strong> the CoE, its
establishment-the secretariat, its organogram,
the needs <strong>of</strong> the CoE both personnel &
financial.
Part 3: the OPERATIONAL result areas that the
CoE must work around to achieve its mandate.
Part 4: the Logical Framework Approach (LFA)
& budget

1. Financially independent/fully operational
secretariat: Financial & operational
2. Political consensus and agreement,
3. Religious and cultural consensus
4. Effective Public participation in the review
process
5. Affirmative Referendum result,
6. <strong>Dr</strong>aft Constitution by March 2 nd 2010,
7. Harmonized Constitutional <strong>Dr</strong>aft.

Was Moi right on role <strong>of</strong> experts?
Did Bomas draft achieve the constituent power?
Did Wako draft achieve the political ventilation?
Did Ufungamano draft achieve a “third way”?
Where is the various interest groups’ agenda?
This is not necessarily a Media, religious, women,
CSO etc., agenda

Consensus is key to the completion <strong>of</strong> review
De-politicisation/politicisation <strong>of</strong> “everything”
about us
Is <strong>Ekuru</strong> from Rift Valley?
IS MY REGION REPRESENTED?
IS MY CHURCH/GROUP IN THE REFERENCE
GROUP?
<strong>Experts</strong> need political parties, the Public,
Religious groups, Women, Media, etc.,
Importantly, Kenya must move on/forward

Independence <strong>of</strong> the CoE (Sections 16, 52, 53)
“Political Will” must be actualized
Completion is also about consensus &
dialogue
WHERE DO YOU FIT INTO THIS
FORMULA/OPERATIONAL PLAN?
WE HAVE A CHOICE ABOUT WHAT
KENYA WE WANT…CERTAINLY NOT
THIS ONE…(see VIDEO)