Wednesday, August 17, 2005

NCEC Ni Samaki ama Kuku?

A Contribution by Oloo to An Ongoing Online Critique of the Kenyan Constitutional Review Process.

Click Here to Listen to August 17th edition of DUNIA: A tribute to Congolese Dance Maestro, Awilo Longomba; an extended conversation with Colombo based Sri Lankan activist poet Krisantha Sri Bhagiyadatta; additional music by Nairobi City Ensemble...


Initially, I was going to build my latest digital intervention around the

ongoing five day tour of China by our Mtukufu Rais.

Hopefully, this was going to build on my essay from a few months back which had wondered out loud if China had thrown Kibaki an international relations diplomatic life-line, given the frosty tiffs with Kenya's traditional Western "friends".

I was definitely going to weave in some scathing, hopefully appropriately ascerbic barbs to the Chinese authorities about their rather shameless social imperialist designs on African natural resources on a continent they now regard as their "backyard".

Alas,a series of moto moto mabarua pepesi dropped in my virtual electronic sanduku threw me completely out of kilter: there at the bottom of the well was the bulky Kilifi Monster with all the knife and panga wounds inflicted on it thanks to the magic of Microsoft Word's function that allows its users to track all the changes in a document, especially if it is one of those collaborative work in progress group projects. So this is how it looked like, this 295 page testimony to the cynical zeal of opportunis to thwart the painstaking efforts of wananchi to come with a democratic constitution.

My intention was to upload the entire document on to one of the Kenya Democracy Project family of blogs- probably Leta Siasa- but then I ran headlong into a problem circumscribed by two factors- my technical ineptitude when it comes to the migration of electronic documents from one medium to the other-the Composer in Google's Blogger is pretty intuitive and idiot proof and that is the only reason why I can dabble in the dark and not so ancient arts of webgimmickry with some relative ease- the markings on the original document mysteriously evaporated as soon as I had cut and pasted it on to the Blogger's Composer Dialogue Box-or whatever that ka-rectangularish thingy you use to create new blogposts is called... In retrospect that was probably a good thing because when I was peering behind that cyberbox into the html dna/wiring/plumbing I noticed that the codes and the tags id'd the user name of whoever the document passed through- leaving my otherwise confidential sources dead ducks if the document ever made it to the internet. So thanks to my incompetence I am able to protect the cover of a very valuable Nairobi-based source.

In any case the main thing would have been to analyse that Kilifi Changeling. And someone has already done that, as you can see by peeking under this kiunganisho.

With the critical perspectives from that analytical dissection percolating in my snapped awake kichwa, I then started prowling the net looking for different takes on the Kilifi Draft. I had only walked a few steps when I hit pay dirt in the shape of an e-mail dispatched from Nairobi by Mtumishi Orina Nyamwamu that actually forms the running thread throughout the rest of this digital essay.

On my way to this intervention, I passed via the new Kenya Times web site where I was enthralled for a few minutes by a gripping thriller about high ranking drug lords-in the Kenyan parliament and was elsewhere on the net sort of intrigued by Amnesty USA's contribution to the alread entangled Katiba making process.

Anywayz, like I was saying was that what had me even more ensnared was the ricochets of robust views ping ponging across the nets of Kenyan flavoured online forums like Africa-Oped and Kenyaonline largely driven by some of the commentaries in the press about the possibilities of a referendum this coming November.

At first, I wanted to roll up shirt-sleeves and mix it up with the various discussants- but as I read each new riposte and rejoinder I was brimming with things I wanted to say on almost every thread. It did not take me long to decide that the most sober way, for me at least, would be to drink in the back and forth from Deepest Lurkepia (the land of the lurkers of cyberspace) while formulating my own, as always, elongated resonses...

And that is precisely what I have ended up doing.

That is why this essay has the Marxian subtitle, A Contribution to An Ongoing Online Critique of the Kenyan Constitutional Review Process.

Here is how the rest of this blog entry is structured:

We begin by reposting verbatim, the August 12,2005 NCEC statement unleashed by Reverend Timothy Njoya and several others.

Then we reproduce some of the exchanges on Africa-Oped and Kenyonline with two commentaries published respectively in the Standard (Ababu Namwamba) and the Kenya Times (Adong'o Ogony) embedded to bolster the back and forth in those exchanges.

I then follow up with my own extended reaction to the NCEC piece and running commentary on the Africa-Oped and KOL exchanges.

Simple as that.

Na tusipoteze wakati:

NCEC PRESS STATEMENT TO OUTLINE THE WAY FORWARD TOWARDS A NEW PEOPLE DRIVEN CONSTITUTION AND A SUSTAINABLE REFERENDUM

The National Convention Executive Council (NCEC), the Executive arm of the National Convention Assembly (NCA) Social Movement- has carefully assessed the state of the Constitution Review and the state of the Nation over the last three months. We wish to make known our position as regards these weighty matters. We also wish to share the plan of action we have resolved to pursue as NCA-NCEC from now until the conclusion of the review process. While the country has been made to believe that there will be a referendum to adopt a New Constitution in November this year, NCEC fears that the irresponsible and selfish handling of the review process by the President, parliament and the CKRC to date has fundamentally made this hope distant and shaky.We wish therefore to state as follows:-

That the Country's Constitution review Process is currently precariously hinged on an illegal, illegitimate and unconstitutional Legal and political basis. The Consensus Act which is governing the current process is irrecoverably unconstitutional and flawed. Several cases before the court that challenge the very validity of the Consensus Act remain undetermined. These cases are challenging the validity of the whole process. NCEC rejects the illegal process and the Draft Constitution that is currently being drafted by the Attorney General in liaison with Parliament. Numerous constitutional issues touching on the drafting of the constitution, public participation, the structure and administration of the referendum as well as the transitional mechanisms from the current constitutional order to a new one remain unresolved.

NCEC further rejects the logic being advanced by a group of politicians that whether Kenyans Vote YES or NO for this draft at the referendum, it shall be a win- win situation for their clique. It is odd that President Kibaki and members of this group already know what the contents of this Draft are even as it is being worked on by the Attorney General. This indicates that this process is leading to a rigged Constitution which favours certain undisclosed interests against the will and interests of the nation, the sovereignty of the people and the supremacy of the constitution.

These politicians are misleading the nation on the matter of constitutional review. Having learnt from the Zimbabwe Constitutional referendum experience of 2000, from that of Uganda and other countries, Kenyans should know better than to accept such folly.

NCEC Analysis of the Miscellaneous Application by LDP-KANU members and others

NCEC welcomes LDP, KANU, Katiba Watch and others who misinterpreted the Ringera ruling who have at last seen the significance and essence of the constitutional court ruling as regards the place of the sovereignty of the people and the supremacy of the Constitution in constitution making. They have agreed that the Constituent Assembly and not parliament can make a constitution for the people.

However it looks like part of the intention of the miscellaneous application filed by the LDP/ KANU members is to put Bomas Draft in the referendum (Refer to Page 24 No. 213 and page 27 No. 228).

The Applicants borrow some legal elements from the Court ruling in the Njoya case for use as light legal weapons and ammunitions only to discard them and then revert to their own heavy artillery, the very Section 3, 5, 17, 27 etc and the Constitution of Kenya Review Act Cap 3A (refer to No. 190 to2001) whose constitutional validity the NCEC challenged during the Njoya and others case.The Court ruling in the Njoya and others case is being cited to achieve objectives other than to be governed by it.

Hence, while the NCEC went to Court in a principled manner based on values and beliefs in a principled people driven constitution in the exercise of peoples' sovereignty, the current appellants (LDP and KANU and others ) are driven by the power principle to use every weapon possible, including the use of the NCEC's people driven slogan, to regain their lost ground in Bomas draft.

When two bulls fight, the grass suffers, and NCEC, happens to be the grass, the only genuine political rendering of peoples' aspirations and expectations. The NCEC should not be caught in the crossfire between Pro-NAK factions in the government on the one hand and the Pro-LDP+KANU on the other hand.

The impact of the Osundwa and 21 others Application together with other cases pending before the courts is enormous. In part, these cases may mean that the process having come this far and the Draft Constitution now being prepared by the Attorney General may very well be declared null and void. We therefore urge the Chief Justice to intervene personally to see to it that the cases are determined expeditiously so that the country is given the opportunity to evaluate and determine the proper way to move forward on the Constitution review process.

President Kibaki should lead the way towards establishment of a legitimate review process.

In order to secure the process finally from manipulation by the executive and parliament and from further legal challenges, NCEC hereby calls for the establishment of a legitimate and constitutionally sound review process. The President, Justice Minister Murungi and the Attorney General should, for the sake of the nation, abandon their spirited activism for the Parliamentary-made Constitution which is clearly in violation of the law, the constitution and the rule of law. They should instead facilitate the establishment of a truly people driven review process that respects the principles that were outlined in the Njoya and six others case. These three public officials will eventually be held responsible for the eventualities that may follow the collapse of the constitution review process. President Kibaki must never forget that his pledge to the people was NOT to make a constitution for them but to facilitate the people so that they may make their preferred constitution through constitutional, legal and legitimate means.

The Constituent Assembly as the Feasible Next step and Way forward

In particular the way forward now requires that a National Constituent Assembly be established under the provisions of a new Legal framework. The Constituent Assembly Must be established in accordance to the notions and principles that were spelt out in the Ringera ruling. The Constituent Assembly may be established as the Conference for a Democratic Kenya (CODEKA). For purposes of continuity and sustainability, the Constituent Assembly should within a month of commencing business finalize the drafting of a legitimate draft Constitution using the people's views that were given to the CKRC as well as the Draft Constitution developed at the Bomas Conference. NCEC therefore offers its technical resources to facilitate the effective establishment of the Constituent Assembly to render the enormous task that has held the nation back for about 15 years.

Civic Education

The New draft Constitution from the Constituent Assembly shall form the basis for Civic education. Authentic civic education should be carried out for at least three months and it should be facilitated by Civic associations, membership organizations, other Civil society organizations as well as other legally recognized bodies with the requisite competence. NCEC is opposed to the kind of Civic education that is being supplied by various politicians. We are disappointed that the President himself has taken up the infamous role of a cheer leader for the Bunge-Wako Draft Constitution.

The Referendum

Further, NCEC calls for a genuine and broad based debate on the referendum. The rationale for this demand is that the anticipated referendum has too many issues that need to be dealt with upfront. The ECK, CKRC and the various entities involved in the review process currently do not have the legal and popular mandate of the people of Kenya to deal with the issues of the referendum. The referendum being a constitutional organ of the people of Kenya which touches on the very sovereignty of the people needs a most objective and competent treatment.

We are of the view that the question of the referendum, the administration of the referendum, the participation of the people and the socio-political environment within which it will be conducted remain concerns that the nation has not began to deal with in a meaningful way. Under a genuinely established Review process, a Broad based National Referendum Committee should be established to determine what the referendum question should be. Secondly, the country must debate and agree on what the Unanimity rule shall be. The country should agree what percentage of the voters MUST approve the draft constitution for it to be declared legitimately consented to. Various percentages have been suggested including 51%, 60%, and 65% of the voters. What if only 20% of the registered voters from two or three provinces turn up to vote and the rest of the voters boycott the referendum vote? Will this be a legitimate endorsement that can attract a sustainable consent? What will the way out if such a scenario occurred?

NCEC shall henceforth convene public forums to kick start a national dialogue on these solemn matters.

The environment of constitution making

The environment of Constitution Review is currently poisoned; the country is divided and insecurity, famine, poverty and massive unemployment characterizes the social context within which the Constitution review is been navigated. The country is divided along ethnic, religious, gender, social class, age and regional lines. The Constitution Review has failed to offer the opportunity for the realization of the Vision and objectives of constitution making. [See the Constitution review Act Cap. 3A of 2001 (revised 2002)].

13.A Conducive environment for Constitution making.

NCEC demands that the government, led by the President, should immediately outline a comprehensive strategy on how it will work with the civil society, political parties, the religious community and the international community to secure and level the environment for sustainable dialogue and citizens' participation in civic education and in the referendum. The use of the police to unleash violence on peaceful demonstrators, the continued disruption of Civic education meetings by the police and the insecurity that is currently widespread in the country as was epitomized by the Marsabit killings, are all pointers to a degenerating regime that we fear may ruin the opportunity that constitution making presents countries. President Kibaki's government is now on the spot and the community of civilized nations is watching to see how Kenya shall conduct her delicate review process now in the home stretch.

NCEC sees it inevitable that a General Election MUST be held immediately after the referendum is completed. Whichever way the people of Kenya decide at that referendum fresh elections should be held. If Kenyans accept a new constitutional order, the consequence will be a fresh election to facilitate the election of a legitimate political regime with the mandate to implement that new Constitution. A rejection of the proposed Constitution will on the other hand amount to a vote of No confidence in the NARC government in which case a general election must be held to usher in a government that has the mandate to govern.

The country should hold the elections immediately after the referendum is concluded to ensure that the country is not subjected to the constitutional crisis of being governed by two constitutions concurrently and by a government that has no mandate to implement that same constitution. The NARC Mandate is founded on the current constitutional order. Kenyans did not donate a non-limited mandate to the NARC administration.

Secondly, the election will guarantee that our country effectively makes the transition from the current NARC misrule, chaos and wrangles to a new legitimate and credible government. President Kibaki has attacked and undermined democracy consistently by bringing through the backdoor those politicians who Kenyans rejected in the 2002 General as well as several of Moi's men who looted and plundered the economy. Courtesy of the Kibaki decision to bring these cabal to government on June 30, 2004, The country has largely lost direction on all the most important platforms that NARC was elected to implement including:-

To end official and rampant corruption. To implement a transitional justice process to clean the mess that Kanu had caused, deal with historical injustices and to facilitate national reconciliation and renewal.

To carry the reconstruction of the economy in order create jobs for millions of jobless Kenyans

To institute programmes to advance social justice in the country.

A New Constitutional Order should be presided over by a team that has the mandate and the corresponding characteristics needed to implement that Constitution.

1.Rev. Dr. Timothy Njoya NCA- NCEC Co-convener & Spokesperson

  1. Mithika Mwenda Co-convener Youth League of NCA
  2. Sophie Kidenda Co-convener NCA Women League
  3. Suleiman Mohammud Isaak Co-convener for Minorities And Marginalized Communities
  4. Sheikh Juma Ngao Co-convener for Interfaith Dialogue
  5. Kipketer Arap Meli Co-convener for Civil Society in Community struggles
  6. Cyprian Nyamwamu Secretary to the Council
  7. Gupta Ng'ang'a Thiong'o RPP Chair and member of NCEC
  8. Kepta Ombati YAA and member of Council
  9. Joseph Mutua YAA and Member of the Council
  10. Ndung'u Wainaina NCEC


_________________________________________________________

From: "Gichane Muraguri"
Date: Tue Aug 16, 2005 5:27 am
Subject: On the referendum/Orina

Orina,

Thanks for posting NCEC's statement.

I particularly like the point...

> 8. The Constituent Assembly as the Feasible Next step and Way
forward
>
> In particular the way forward now requires that a National Constituent Assembly be established under the provisions of a new Legal framework.

Observation:

The situation on the ground begs for either Bomas IV or Kenyans are just going to be fed with a crap pie for a constitution to vote for in the coming referendum. Why?

Scenario 1:

Voting "yes" on what Wako will come with is merely a vote to support Kibaki team in the political games they are playing with the Raila team.

The equation for Wako's draft will be: 80% the people, 20% Kiraitu's wish

Scenario 2:

A vote for the Bomas Draft on the other hand is support for Raila team, (remember he hand picked all the bomas delegates other than the MPS..they paid him back in the draft).

The equation for Boma's Draft is: 80% the people, 20% Raila's wish

20% is what they call contentious issues and that is the reason for the battle.

Both scenarios are political and constitutional frauds, and both Raila and Kibaki know it but don't care. They are politicians who must win, regardless of whom and what they kill. In this case they are killing constitutionalism in Kenya.

The cancer is in the process, hence a sickly offspring in form of Bomas Draft, and all the other products, (Naivasha, Kilifi, Wako drafts) and anything else coming from these funny games they are playing in parliament.

Remember the parliamentarians were just delegates at Bomas. 210 out of 629. Who are they to separate themselves and change the product of their fellow delegates..or their vote had more weight?

It will have to be Bomas IV which will hopefully give birth to a WIN-WIN KATIBA..or simply NO DEAL! Kenyans must be able to go into the streets to dance to a new constitution led by both Kiraitu and Raila holding hands, all in agreement,what we saw in 1963 at the dawn of independence. Anything short of this remains a fraud.

The situation is such that we have to do something or die (read live with the current constitution) otherwise, a "yes" and a "no" on any of the two documents is fatal for Kenya. A "no", reject new, hence, status quo. A "yes" means a modification of the status quo. MKM's
don't mind either votes scenario, that is why the want a referendum dearly. LDP-KANU know it, so they want to stop the referendum; and then..no new constitution, back to status quo, MKM even happier,blame LDP-KANU for stopping the process.

That's what is described as a classic devil's alternative. you do you are done, you don't you are done squared!

solution:

We bite the bullet and go for the cancer (the process); RECONSTITUTE A PEOPLES CONFERENCE ON THE CONSTITUTION TO FINISH THE JOB!

We have to agree as a young nation to take this risk in our short life, to determine the direction our country will go early otherwise our old age will be a painful slow DYING process. We want die smiling and saying life was good albeit the hitch at 40.

Our options are (i) we die during the "operation" (ii)we go for the operation and come out healed, (iii) wait patiently in our death beds with pain growing everyday, to eventually die.

I would chose to take a chance with the operation and hope to live for ever.

Just like in our personal lives and the shared lives we engage in,for you to be whom you wonna be, events of life might corner you to have to make such a painful decision. One has to brace to have to face it boldly and hope to live to tell or agree to remain in unfulfilled life of misery and pain, for you FEARED to jump into the fast flowing river. We got to have the fear, yes, it is not funny, but mostly we have to "feel the fear and do it anyway" (read the book in this title)

IF WE SURVIVE, the operation, then we have an opportunity to heal for ever, albeit the scar. Otherwise, it feels good to be able to look back and celebrate the risk we took.

Another peoples conference must sit to finish the job or the cancer remains in the bone. We saw street protests start again, police brutallity even more tech with water jets and bullets.We can easily disintergrate, if we take this lightly. Both sides are well dug in and have weapons and ammunitions. remember our enemies would love to see us fail.

Of course during all this the poor mwanachi is again "the grass" of the battle field. They are still hungry, unemployed, diseases and poverty, etc

Let us be all be part of the solution.

kamacharia
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pkngunyi writes in kenyaonline:

Kenyans:

In my view the review commission had the only mandate to prepare a draft.

"This new development means the commission will take charge of the referendum, effectively dashing hopes of MPs to take a lead role in the exercise."

Let us be cautious. They dont have the mandate or the requirements to lead the referendum process. WHY...BECAUSE THEY BELIEVE THAT THE DRAFT IS PERFECT. The purpose for the referendum is the equivalent
of an employee going for an evaluation after completing his/her
probation...now can that employee take charge of evaluating his/her
performance?

Guys like PLO and Shikuku need to step aside and let us decide if
this draft is good or bad....pkn

ps.
the review commission evolved to an activist ngo during bomas 3. the commision desperately lacks the OBJECTIVITY AND SPIRIT required in constitution-making-business to make well-thought and balanced decisions for wanjiku.
---------------------------------------------------------------------
Awr:

Your remarks read well.

For sometime I have had issues with BOMAS 3 and the draft they produced; my view is/was that in the business of constitution making, we need to more patient with another and listen with open
minds.

Which of the following options best represents Wanjiku's interests:

1. Take Bomas 3 to Wanjiku for a ref and let her give it an up or down vote

2. Take Kilifi 1 to Wanjiku for a ref and let her give it an up or down vote

3. Go to Bomas 4 and hope to come out with a more hermonized draft Mhhhhhhhh.....3 is sounding like a reasonable option!

I am a still reading...pkn

here is Gichanes comments which echo my thots...

--------------------------------------
Oloo Onyango,

Habari ya Montreal,

I always read to the last word of your lengthy blogs and you always amaze me with your research skills. But what i like most is the fact that you're a political animal, willing to go deep to dig it out, and put it out there for our consumption. Keep it up!

The issue of a new constituion of our dear country continues to intrigue me in this never ending soap opera of the Kiraitus and Railas of the political society verses "Wanjiku" the proposed beneficiary of the ongoing draggery.

IF you have read the Bomas draft in it's entirity, then you will know that it is a fraudlent document obtained fraudulently in the same way the parliament is fraudulently trying to amend it.

It is a fact that Bomas Draft was voted for by 314 delegates of Bomas III participants. 315 walked out. Hence more delegates (out of 629) disagreed with their own document, than those who hurriedly wrapped it up in record speed to prove a point. Infact the Bomas draft is referred to as a "protest document" by both sides.The courts declared the document null and void because it was obtained fraudlently. Now "Kenya B" is in the same courts.

It was shameless for the Bomas delegates to have degenerated to such a mediocre level of insincerity and dishonesty especially after the billions this process has consumed so far. The main victim is "wanjikus" of course, and none of the the pro or anti bomas draft can claim the high moral road on this issue.

I watched the process as an observer, it was very very very sad. In some quarters i was been asked how much i'm paying for a "yes" to dual citizenship, bribery was the order of the day every evening in the posh hotels where the delegates were being accomodated.

Eg, Dual citizenship was denied in the Zero Draft(committees reports), but the armies were in place for a fight for it in the plenary session, that was supposed to review decisions from the
committees. That is how it qualified to be contentious because the Pro Dual forces were a critical mass by the time we went to the plenary session to debate all motions filed in respective committees.

My take on this is having a fraudulently patched up Kilifi draft constitution to be seen to have delivered an election promise is double fraud. Having us to endorse a fraudulent Bomas draft is also fraud. So?

I am for the counting our losses early before the bill goes to 10 billion. A "YES or a NO" on damaged goods will still leave us with constitutional constipation.

Lets do it again! We have the views collected from mwananchi still intact. The process boggeys only when the delegates went to Bomas.

Constitute BOMAS IV.

This time around, it should be done in an inclusive and representative manner. Then if we can agree, then we for a revolution. Making a constitution inpeace time is very difficult.

maani,

kamacharia
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
From: "awuorblaise"
Date: Tue Aug 16, 2005 8:41 am
Subject: Re: +fr Awr....what do you say we vouch for Bomas 4 family: arial;">PKN,

For nearly 10 years I always read my fellow son of a Kenyan Mwalimu,Gichane wa Kamacharia. Once upon a time I even converted him into a die-hard FEDERERALIST, a unique first from a man of his ancestry in these fora. But, he later confessed to me, it was the unlimited wisdom of his Mwalimu father, rather than the baggages that are passed down through ethnicities.

Also, when we were still little boys growing up in Kenya, Gichane and I had the opportunity to attend the same school within the University of Nairobi's college of arhitechure and engineering,sharing urinals and drinking water from the same taps .... which is probably why in the nearly 10 years our viewpoints tend to converge.

Now, with those few remarks, let me read his views below, and I hope he shares my scepticism of the politicos, and my faith in Wanjiku. Methinks that between the BOMAS process and the KILIFI resort fraud,he will probably recognise Wanjiku's input in the former despite the efforts of the political class to disrupt the same at the very end.

Blessings!


+Fr Awr
-----------------------------------------------------------------------------
From: "mrbob_k"
Date: Mon Aug 15, 2005 3:24 pm
Subject: Re: Is Review commision extending its mandate

The case against the `Kibaki constitution'

By Adongo Ogony

Koigi Wamwere the Subukia MP finally put his fingers on the futility of the fraudulent Katiba Amos Wako is busy minting in some undisclosed location. I can guarantee you it is in some posh hotel with full services at the taxpayers expense of course.

In an article published in Kenya Times August 8, 2005 Koigi complains of having nightmares after he voted on July 21 2005 to support the "cut and paste" constitution parliamentarians produced
for President Mwai Kibaki.

Koigi's nightmare is not so much that the new constitution from State House wants to impose a perpetual imperial presidency on the people of Kenya and trash the views Kenyans gave the CKRC, but rather that it is essentially an illegal piece of rubbish that will never see the light of day unless our judiciary completely goes to the dogs.

What is Ndugu Koigi's solution? He wants the LDP and the Kanu M.P's who voted against the Kibaki Draft to change their position and come back to parliament not to debate the Draft but rather to change Section 47 of the Constitution to remove the legal quagmire that the Kibaki Draft is sure to face in the months ahead.

"Can a magnanimous LDP and Kanu be bolder, less demanding and more generous to Kenyans by guaranteeing their support to the government when it brings to parliament the bill that will change section 47 and give the country a legitimate constitution whoever wins the
referendum" this is the question and challenge Koigi poses to his fellow parliamentarians

This is where Koigi misses the point by a mile. I will come to that shortly. First let us look at the problem with section 47. Koigi himself admits being bewildered by the position of our Justice and Constitutional Affairs Minister Kiraitu Murungi when he told the media shortly after their "great victory" in parliament that there is no need to change section 47 of the current constitution. Kiraitu's contention was that Kenyans have an inherent right to change their constitution and the present constitution be damned if it gets on the way.

I think Koigi missed on a little piece of information Kiraitu told the media at the same interview. Kiraitu said without blinking that the reason they did not try to change section 47 was because the supporters of the Kibaki constitution could not get the two-thirds
majority required to amend that section. In other words as far as Kiraitu is concerned it is not a matter of what is legal nor what is constitutional that determines their actions but rather the numbers. If the government cannot buy enough votes to get the numbers then
the law be damned and on to the referendum. That really is the problem Ndugu Koigi. It is not that Kiraitu does not understand the constitution and the law. He does.

The real reason why Kiraitu did not try to ask parliament to change section 47 as they agreed in the equally fraudulent Naivasha Accord is because as greedy as he is Kiraitu could not fathom the idea of real consensus building with the LDP and Kanu that could compromise the constitutional "Bible" from State House. The folks at State House had a fixed mind on the constitution they wanted and a genuine parliamentary consensus would mean give and take not just a sheepish
rubber stamping of what State House wanted like Nyachae did in Kilifi.

What happened is that Kiraitu conned his colleagues in Naivasha agreeing to bring section 47 amendment bill with the rest of proposed amendments on Bomas to parliament but as soon as he stepped out of there he simply told them to go to hell. He already had a basic agreement to change the Bomas Draft accepted by all the parties. He knew he would get enough puppets and opportunists together with the rest of the mercenaries on sale to do his thing.That is why everything had to be passed by simple majority. If Kiraitu introduced amending section 47 as part and parcel of the deal to amend the Bomas Draft he would have to get two-thirds majority for every amendment on Bomas requiring real and honest consensus building in parliament.

In short it is Kiraitu's greed and arrogance that might end up being the saving grace for Wanjiku on the Katiba war. My position has always been that the Naivasha Accord was the greatest danger we faced in the struggle for a genuine people driven constitution. The Naivasha Accord provided a legal framework for the con men in parliament to mess up with the Bomas Draft without any structured input from other stakeholders and they could pretty much have gotten away with it. But mercifully as we all know there is never any honour among thieves and here we are with Wako drafting an illegality that is going nowhere and the president is already promising to campaign vigorously for the same. How ridiculous.

Now the LDP and Kanu have formally filed a case in court to stop Wako's con job from going to the referendum. That really doesn't matter. There are already multiple cases on the same pending in
court. Those who know anything about constitutional process like our turncoat "people driven constitution" champion Prof. Kivutha Kibwana are very much aware that the court cases are going to urinate rather heavily on the State House constitution making.

The other day I was amused when Prof. Kivutha Kibwana urged the LDP and Kanu to ask what he referred to as "their proxies" to withdraw the cases in court to ensure smooth sailing for the State House constitution.

I say amused because not so long ago the same Kanu people used to refer to Kibwana when he fought on the side of Wanjiku as a proxy of XYZ. Now the same Kibwana thinks human rights activists fighting for a people driven constitution are mere proxies. Good for him.

The bottom line is that the only way the Kibaki constitution sees the light of day is if they can persuade all the 30 or so million Kenyans to agree that none of them will file any case against the Draft Wako is working on. That is practically impossible and that is why parliament was supposed to insulate the new constitution against litigation by ensuring everything was done according to the law not according to political expediency. They never listened and now they
are dancing at their own funeral.

Now to those who say it is unfair to put legal barriers on the Draft after all it is going to the referendum and the people of Kenya will make the choice, I have a few words for you. First of all the forthcoming referendum does not give Kenyans any choice. If they wanted to give us a choice they would have put the Bomas Draft against the Kibaki Draft and let the people decide. Are they doing that? No. Instead we have the Kibaki constitution against the Moi constitution. Both are bad and it is pitiful that some people are telling us the new draft is a slight improvement so we should swallow hard and accept it. That is nonsense. Let me give two illustrations.

Let me ask a simple question. If someone came to you and asked you to choose which of your two arms you are willing to get chopped off, would you call that a choice? I wouldn't. Some would say well if I am right handed then may be I have a choice to just get my left hand chopped so that I still retain the right hand. What happens if you bleed to death after your left hand is cut off? Will your right hand still be of use to your dead body? I don't think so. So asking to choose between the Moi Katiba and the Kibaki Katiba to me is asking to choose which hand to chop off. It is not anything any of us would do as a matter of choice. We would do it under duress with dangerous consequences and I for one I am having none of it.

Then there are those who say that 80% of what was proposed in Bomas has been retained in the Kibaki Draft and that we should accept it and continue fighting for the remaining 20% that has been watered down. Again I will use the human analogy. Let's say you weigh 200lbs. Then someone comes to you and says look we are going to take only 20% of your body and leave you with the 80% and that should be fine.

Would you agree? I doubt it. Why? Because even if say we were to take only 5% of your body and it turns out to be your head that we chop off leaving you with 95% of your body mass, of what use exactly is the rest of your body to you? You are a dead fella my friend and it matters little what percentage of your body mass is available for burial.

That is what the constitutional thieves in parliament did. They chopped off the head of the Bomas Draft by mutilating the provisions on the executive and devolution of powers and left us a rotting body(80% or whatever) and they tell us we should consider ourselves lucky we have such a big chunk. Well folks it stinks already.

Now what to do? First Koigi should stop dreaming about a solution to this problem coming from parliament. It won't. They had their chance and blew it because of their greed for power and reckless opportunism as well as the thriving tribal chauvinism under Kibaki.The cat is out of the bag.

The battle for a genuine people's constitution is squarely in the hands of the people of Kenya. The battle is going to rage in all fronts. In the courts. In the streets. In the polling booths and we will get our new constitution but never under the present regime. Kenyans understand that. We are all waiting for Wako to confirm all our fears and we will take it from there. I am sure Wako will not disappoint us.

The writer is a human rights activist.
..........................................................................

From: "mrbob_k"
Date: Mon Aug 15, 2005 5:39 pm
Subject: Re: Is Review commision extending its mandate
This is not a referendum, it is a titanic political duel
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By Ababu Namwamba

"If you want something badly enough, the gods will let you have it!"

This gem from ancient Greek mythology has double-edged meaning. One of hope the other of caution. Greek gods like Athena were believed to be generous in their reward of persistent good. But they could also let you self-destruct if you were so predisposed, like they did with the awesome warrior, Achilles, whose arrogance led to his demise in the great battle of Troy. The caution is: beware what you pray for, it might just come to pass, and leave you cuddling a genie!

As I follow the referendum debate from Washington DC, I cannot help but marvel at the paradoxical relevance of the Greek saying. For the Narc right wing, the imperative to deliver a new constitution is now fervent, the mythical a hundred days having long passed. As things
stand now, the constitution will once again be the clincher in 2007.

The Narc conservatives know quite well that the reform sword that wasted Kanu in 2002 now hangs ominously over their necks. So they have gone to the "gods" and all they want is to have this "thing" pass, whatever the thing is! But another group of supplicants is also talking to the gods: Kenyans are fervently praying for the opportunity to "recall" this regime midstream. If the constitution gods are like Apollo of the Greek lore, the only way they will settle this confluence of demands is through a duel, like the fabled battle of Troy!

The referendum will therefore be nothing constitutional. If it proceeds as presently conceived, it will bloom into the most ferocious political duel ever fought in Kenya. The casualties will
be plethora. The ramifications are mind-boggling. It is at such epochal moments that great leaders rise to avert national catastrophe. But the Kenyan political scene right now appears bereft of generals to hammer out a truce. In this looming battle, everyone is a foot soldier. President Kibaki was the first to declare himself one when he announced he was headed for his Othaya constituency to wage battle in familiar territory.

The scene is set, and a duel is inevitable. So we do what must be done in wartime: Pick your side and dress for combat. For me, the choice is simple: I will not eat a rotten fruit whose stench is
camouflaged as scent. Once the conservative Narcists started engaging in the suicidal games of altering the expressed will of the people, I took it for an act of aggression. It has been only a
matter of "when" we would line up for battle.

There are three reasons I believe the referendum will not give us a new constitution:

One, the mindless tinkering engineered by the Kiraitu-Nyachae axis has resulted in an irredeemably flawed process whose product became still-born long before due date. On my last Crossfire show, I warned that the myriad mutilations of the review were a recipe for a constitutional crisis because the final product would be poisoned by fundamental flaws in the process. You cannot pass a new constitution in peace time outside the framework of the existing one. As long as section 47 of the current constitution remains intact. And as long as the Ringera ruling remains a juris precedent, the constitution making roadmap in the Consensus Act is a nullity. Further, in the absence of specific legislation and constitutional anchorage, the
referendum is an alien creature with no niche in our legal system.The product of an illegality can never be legitimate.

Both the process and the product will not withstand a sustained legal challenge. The latest suit by MPs is just the first in a fresh wave of legal hurdles that will encumber the process ad infnitum. The worst is yet to come. From a constitutional lawyer's standpoint,the best legal battles will be fought post-referendum, if we get that far. The botched handling of this process may also see this battle go international. Kenya could well become the first UN member state to have its constitution adjudicated in international judicial tribunals, leading to a precedent.

Two, adopting what Wako is drafting would be tantamount to sanctioning fraud. Kenyans chose their kind of constitution: one founded on democratic tenets that guarantee limited government;
devolved authority; rule of law; liberty, justice and opportunities for all. The jewel is a limited presidency. Kenyans firmly rejected an imperial presidency. This arrangement is a holistic package. Kenyans had a fish. Kiraitu and Nyachae took it and threw it into the sea in Kilifi. Now they have handed Wako a snake to fry and disguise it with spices, then serve it as a "fish!" I caution those who may be hoodwinked into believing that their gains are intact.Beware. Unless it is whole, it is worthless. An imperial presidency will soon emasculate any little gains that may be sprinkled in that draft.

Three, the review process has been taken hostage by partisan politics. The president himself has lowered himself from arbiter to an avowed contestant. While the Bomas parley may not have been
perfect, it was crucially not controlled by the political class. It is thus not surprising that even with its frailties, the Bomas draft enjoys general acceptance even by its critics. Indeed that draft, together with the original CKRC data, presents this country with the only legitimate starting point for further constitutional debate. All deals brokered in resorts by politicians - from Naivasha to Kilifi - are political gimmicks that no plebiscite can sanitize.

Fellow Kenyans, we'd rather live 50 years as tigers than 100 years as chicken. We cannot lose so many lives and spend billions in pursuit of a new constitution, only to adopt a worse version of the old one cleverly couched in different text and printed on new paper. We must rise and demonstrate that we are the sovereign and can recall political mandate. Vote "NO" against the snake, and demand back your fish. Your no vote will be a vote of no confidence in this
intransigent regime. For the Narc conservatives, the only way to avert this imminent political Armageddon is to halt that unholy process. The way out is to convene a democratically elected
Constituent Assembly that should use the already expressed popular will to write a people's constitution in time for the next polls.

* The writer is an advocate and a Fulbright Fellow, American University, Washington DC
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Onyango Oloo Jousts With the Rev. Njoya and Comrades from NCEC

The NCEC Says:

�While the country has been made to believe that there will be a referendum to adopt a New Constitution in November this year, NCEC fears that the irresponsible and selfish handling of the review process by the President, parliament and the CKRC to date has fundamentally made this hope distant and shaky.

Oloo Says:

Whoa! Hold Up! Ngoja kidogo. The review proces has NOT been mishandled by the "President, parliament and the CKRC". Hasha, Mchungaji Njoya, Mtumishi Orina and Wakili Thiong'o. A faction within the ruling NARC formation, namely, the NAK faction fronted by Kiraitu Murungi have put up road blocks to the completion of the contitutional review proess that they had committed themselves to wrapping up within the first 100 days in power. Kibaki is part of that NAK selfish(your word, not mine) faction. In parliament, there is a clear cut division between those legislators committed to the delivery of a democratic constitution and those who want to set up an Imperial Presidency. Members of the NCEC: it is crucial that you stay away from the hoodwinking of the wananchi from the get go....

The NCEC Says:

�That the Country's Constitution review Process is currently precariously hinged on an illegal, illegitimate and unconstitutional Legal and political basis. The Consensus Act which is governing the current process is irrecoverably unconstitutional and flawed. Several cases before the court that challenge the very validity of the Consensus Act remain undetermined. These cases are challenging the validity of the whole process. NCEC rejects the illegal process and the Draft Constitution that is currently being drafted by the Attorney General in liaison with Parliament. Numerous constitutional issues touching on the drafting of the constitution, public participation, the structure and administration of the referendum as well as the transitional mechanisms from the current constitutional order to a new one remain unresolved.

Oloo Says:

True and False. Yes, some of the laws passed are very questionable. But the constitutional review process itself has the legitimacy of historical struggles and sacrifices. If you are looking for legitimacy, dear members of the NCEC, rattle off these names: Lancaster I, Lancaster II, Repeal of Section 2A, Muoroto, Saba Saba, Nane Nane Tisa Tisa Kumi Kumi. Call out the names of patriots who have died fighting for a democratic dispensation and do not trash the public, national, open and transparent consultations that culminated in Bomas I, II and III collapsing and conflating these into the obscenities and pornographic unconstitutional acts that took place at Naivasha and Kilifi.

The NCEC Says:

NCEC further rejects the logic being advanced by a group of politicians that whether Kenyans Vote YES or NO for this draft at the referendum, it shall be a win- win situation for their clique. It is odd that President Kibaki and members of this group already know what the contents of this Draft are even as it is being worked on by the Attorney General. This indicates that this process is leading to a rigged Constitution which favours certain undisclosed interests against the will and interests of the nation, the sovereignty of the people and the supremacy of the constitution.

These politicians are misleading the nation on the matter of constitutional review. Having learnt from the Zimbabwe Constitutional referendum experience of 2000, from that of and other countries, Kenyans should know better than to accept such folly.

Oloo Says:

Hapo mumenena ukweli.

The NCEC Says:

NCEC welcomes LDP, KANU, Katiba Watch and others who misinterpreted the Ringera ruling who have at last seen the significance and essence of the constitutional court ruling as regards the place of the sovereignty of the people and the supremacy of the Constitution in constitution making. They have agreed that the Constituent Assembly and not parliament can make a constitution for the people.

Oloo Says:

I detect a sectarian, personality side swipe that I will ignore because I cannot quite decode the subliminal barbs.

NCEC Says:

3. However it looks like part of the intention of the miscellaneous application filed by the LDP/ KANU members is to put Bomas Draft in the referendum (Refer to Page 24 No. 213 and page 27 No. 228).

4. The Applicants borrow some legal elements from the Court ruling in the Njoya case for use as light legal weapons and ammunitions only to discard them and then revert to their own heavy artillery, the very Section 3, 5, 17, 27 etc and the Constitution of Kenya Review Act Cap 3A (refer to No. 190 to2001) whose constitutional validity the NCEC challenged during the Njoya and others' case. The Court ruling in the Njoya and others' case is being cited to achieve objectives other than to be governed by it.

  1. Hence, while the NCEC went to Court in a principled manner based on values and beliefs in a principled people driven constitution in the exercise of peoples' sovereignty, the current appellants (LDP and KANU and others ) are driven by the power principle to use every weapon possible, including the use of the NCEC's people driven slogan, to regain their lost ground in Bomas draft. When two bulls fight, the grass suffers, and NCEC, happens to be the grass, the only genuine political rendering of peoples' aspirations and expectations. The NCEC should not be caught in the crossfire between Pro-NAK factions in the government on the one hand and the Pro-LDP+KANU on the other hand.

Oloo Says:

Dr and Reverend Timothy Njoya I think that one of the lowest periods in your public life is the day you took the people of Kenya to court questioning their right to have a democratic constitution. With all due respect, NCEC, you did NOT trade-mark the struggle for democracy and social change in Kenya to the point where you claim exclusive use of the term "people-driven". Long before liberal theologians had leapt to the national stage to agitate for reforms, Kenyan Marxists and other anti-imperialist forces were calling for multiparty democracy from the late 1970s! Check out the respective manifestos of the December 12 Movement, Ukenya, Kenya Anti-Imperialist Front, Kenya Patrotic Front, Mwakenya, Me Katilili Revolutionary Movement, Harakati ya Kupambania Demokrasia Kenya and others. Yet, Kenyan revolutionaries would look and sound absolutely STUPID if they tried to begrudge the Imanyaras, the Matibas, the Rubias and yes, the Njoyas their contributions in the 1990s. Successive generations of Kenyans have contributed collectively to the quest for a new democratic dispensation in Kenya and therefore it is the height of political conceit, sectarian navel gazing and ideological vacuity to act and talk as if a particular ideological cult in Kenyan society owns the copyright to the terms "people driven". It is an insult to those Kenyans outside KANU and LDP and those who are in those formations to insinuate that Bomas was somehow a Raila or a Moi thing. Can you tell me for instance whose stooge Mwandawiro Mghanga is ? How about Wahu Kaara? Please do not insult our collective intelligence.

NCEC Says:

  1. The impact of the Osundwa and 21 others Application together with other cases pending before the courts is enormous. In part, these cases may mean that the process having come this far and the Draft Constitution now being prepared by the Attorney General may very well be declared null and void. We therefore urge the Chief Justice to intervene personally to see to it that the cases are determined expeditiously so that the country is given the opportunity to evaluate and determine the proper way to move forward on the Constitution review process.

Oloo Says:

No comment necessary here.

NCEC Says:

  1. President Kibaki should lead the way towards establishment of a legitimate review process

Oloo Says:

No! That seems to negate NCEC's "copyrighted" People-Driven mantra does it not? To refresh your memory folks. There was a legitimate review process which concluded at the Bomas of Kenya on March 15, 2004 with the adoption of the Zero Draft. Ndugu Ng'ang'a Thiong'o if I may single you out for criticism- especially since you are a good buddy of mine- have you switched sides? I thought you, Ndugu were one of the pioneers of Katiba Watch?

The NCEC Says:

In order to secure the process finally from manipulation by the executive and parliament and from further legal challenges, NCEC hereby calls for the establishment of a legitimate and constitutionally sound review process. The President, Justice Minister Murungi and the Attorney General should, for the sake of the nation, abandon their spirited activism for the Parliamentary-made Constitution which is clearly in violation of the law, the constitution and the rule of law. They should instead facilitate the establishment of a truly people driven review process that respects the principles that were outlined in the Njoya and six others case. These three public officials will eventually be held responsible for the eventualities that may follow the collapse of the constitution review process. President Kibaki must never forget that his pledge to the people was NOT to make a constitution for them but to facilitate the people so that they may make their preferred constitution through constitutional, legal and legitimate means.

Oloo Says:


The above statement reveals an incredible contempt for all those Kenyans from Samburu land to Loiktok, Lunga Lunga to Malaba, Homa Bay to Runyenjes, Kitui to Nyamira who participated in the national constitutional conference at Bomas which took place over several months and was covered on a daily basis in the country's media. Obviously it is the position of the NCEC that these Bomas delegates are not Kenyans nor did they represent the legitimate views of the millions of Kenyans who dispatched them to Nairobi to represent their views on everything from gender equality to the protection of the environment.

The NCEC Says:

8. The Constituent Assembly as the Feasible Next step and Way forward

In particular the way forward now requires that a National Constituent Assembly be established under the provisions of a new Legal framework. The Constituent Assembly Must be established in accordance to the notions and principles that were spelt out in the Ringera ruling. The Constituent Assembly may be established as the Conference for a Democratic Kenya (CODEKA). For purposes of continuity and sustainability, the Constituent Assembly should within a month of commencing business finalize the drafting of a legitimate draft Constitution using the people's views that were given to the CKRC as well as the Draft Constitution developed at the Bomas Conference. NCEC therefore offers its technical resources to facilitate the effective establishment of the Constituent Assembly to render the enormous task that has held the nation back for about 15 years.

Oloo Says:

Actually as a revolutionary, I could suggest even more radical measures- like for instance, an armed struggle to overthrow this venal neo-colonial dictatorship that has thwarted all attempts at a new Katiba. But I also happen to be a DEMOCRAT who respects, endorses and recognizes the national democratic CONSENSUS that led to the setting up of the Bomas conference. Spewing militant rhetoric and spouting fiery slogans will not take away the reality that at this stage in our historical development, there was simply no way of dismissing the democratic legitimacy that led to the Zero Draft.

The NCEC Says:

9. Civic Education

The New draft Constitution from the Constituent Assembly shall form the basis for Civic education. Authentic civic education should be carried out for at least three months and it should be facilitated by Civic associations, membership organizations, other Civil society organizations as well as other legally recognized bodies with the requisite competence. NCEC is opposed to the kind of Civic education that is being supplied by various politicians. We are disappointed that the President himself has taken up the infamous role of a cheer leader for the Bunge-Wako Draft Constitution.

Oloo Says:

I will ignore the above for two reasons- I have no major quibble with it; I do not quite fathom where the last sentence is coming from and to whom it is directed...

The NCEC Says:

10. The Referendum

Further, NCEC calls for a genuine and broad based debate on the referendum. The rationale for this demand is that the anticipated referendum has too many issues that need to be dealt with upfront. The ECK, CKRC and the various entities involved in the review process currently do not have the legal and popular mandate of the people of to deal with the issues of the referendum. The referendum being a constitutional organ of the people of which touches on the very sovereignty of the people needs a most objective and competent treatment.

Oloo Says:

This could be true. I am out of my depth here in terms of the legal expertise.

The NCEC Says:

  1. We are of the view that the question of the referendum, the administration of the referendum, the participation of the people and the socio-political environment within which it will be conducted remain concerns that the nation has not began to deal with in a meaningful way. Under a genuinely established Review process, a Broad based National Referendum Committee should be established to determine what the referendum question should be. Secondly, the country must debate and agree on what the Unanimity rule shall be. The country should agree what percentage of the voters MUST approve the draft constitution for it to be declared legitimately consented to. Various percentages have been suggested including 51%, 60%, and 65% of the voters. What if only 20% of the registered voters from two or three provinces turn up to vote and the rest of the voters boycott the referendum vote? Will this be a legitimate endorsement that can attract a sustainable consent? What will the way out if such a scenario occurred?

Oloo Says:

I said something very similar in my recent Open Letter to President Kibaki.

The NCEC Says:

NCEC shall henceforth convene public forums to kick start a national dialogue on these solemn matters.

12. The environment of constitution making

The environment of Constitution Review is currently poisoned; the country is divided and insecurity, famine, poverty and massive unemployment characterizes the social context within which the Constitution review is been navigated. The country is divided along ethnic, religious, gender, social class, age and regional lines. The Constitution Review has failed to offer the opportunity for the realization of the Vision and objectives of constitution making. [See the Constitution review Act Cap. 3A of 2001 (revised 2002)].

13. A Conducive environment for Constitution making.

NCEC demands that the government, led by the President, should immediately outline a comprehensive strategy on how it will work with the civil society, political parties, the religious community and the international community to secure and level the environment for sustainable dialogue and citizens' participation in civic education and in the referendum. The use of the police to unleash violence on peaceful demonstrators, the continued disruption of Civic education meetings by the police and the insecurity that is currently widespread in the country as was epitomized by the Marsabit killings, are all pointers to a degenerating regime that we fear may ruin the opportunity that constitution making presents countries. President Kibaki's government is now on the spot and the community of civilized nations is watching to see how shall conduct her delicate review process now in the home stretch.

14. General Elections to follow after the referendum.

NCEC sees it inevitable that a General Election MUST be held immediately after the referendum is completed. Whichever way the people of decide at that referendum fresh elections should be held. If Kenyans accept a new constitutional order, the consequence will be a fresh election to facilitate the election of a legitimate political regime with the mandate to implement that new Constitution. A rejection of the proposed Constitution will on the other hand amount to a vote of No confidence in the NARC government in which case a general election must be held to usher in a government that has the mandate to govern.

The country should hold the elections immediately after the referendum is concluded to ensure that the country is not subjected to the constitutional crisis of being governed by two constitutions concurrently and by a government that has no mandate to implement that same constitution. The NARC Mandate is founded on the current constitutional order. Kenyans did not donate a non-limited mandate to the NARC administration.

Secondly, the election will guarantee that our country effectively makes the transition from the current NARC misrule, chaos and wrangles to a new legitimate and credible government. President Kibaki has attacked and undermined democracy consistently by bringing through the backdoor those politicians who Kenyans rejected in the 2002 General as well as several of Moi's men who looted and plundered the economy. Courtesy of the Kibaki decision to bring these cabal to government on June 30, 2004, The country has largely lost direction on all the most important platforms that NARC was elected to implement including:-

a. To end official and rampant corruption.

b. To implement a transitional justice process to clean the mess that Kanu had caused, deal with historical injustices and to facilitate national reconciliation and renewal.

c. To carry the reconstruction of the economy in order create jobs for millions of jobless Kenyans

d. To institute programmes to advance social justice in the country.

A New Constitutional Order should be presided over by a team that has the mandate and the corresponding characteristics needed to implement that Constitution.

Oloo Says:

We are in BROAD AGREEMENT about most of the above so I will not nitpick- even though I am tempted to.
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Onyango Oloo Gives Ndugu Gichane Muraguri Some Direct Feedback:

_______________________

From: "Gichane Muraguri"
Date: Mon Aug 15, 2005 4:40 am
Subject: Re: ADONGO: Koigi Finally Gets It Right/Oloo

Ndugu Gichane Muraguri Says:

Oloo Onyango,

Habari ya Montreal,

I always read to the last word of your lengthy blogs and you always amaze me with your research skills. But what i like most is the fact that you're a political animal, willing to go deep to dig it out, and put it out there for our consumption. Keep it up!

Onyango Oloo Says:

Ndugu Gichane, thank you for those kind words. I have a hunger for the truth and I long ago discovered that the world wide web is one vast library. By the way, you are not the only person who makes me walk on my head-every time you say or write my name backwards...

Ndugu Gichane Muraguri Says:
The issue of a new constituion of our dear country continues to intrigue me in this never ending soap opera of the Kiraitus and Railas of the political society verses "Wanjiku" the proposed beneficiary of the ongoing draggery.

IF you have read the Bomas draft in it's entirity, then you will know that it is a fraudlent document obtained fraudulently in the same way the parliament is fraudulently trying to amend it.

Onyango Oloo Says:

Ndugu Gichane, I have actually read the Bomas Draft in its entirety several times. It is stored on one of my hard drives. In fact I dissected it at the time it came out as you can see from this link. Do I have problems with it? Of course.

But is it a "fraudlent document obtained fraudently" Ndugu Gichane?

Poppycock.

Claptrap.

In other words- Gijana Gichane Wajana na Majajari na Shamra shamra.

You must be out to lunch on this one mzalendo mwenzangu.

Nd. Muraguri:

Can you explain to me exactly what is "fraudeulent" about having close to 700 delegates representing every region in the country sit together in the nation's capital for several months to deliberate about the constitution?

What is fraudulent about members of the constitutional review commission travelling to the remotest village in the republic collecting the views of the humblest mwananchi about the Kenya Tuitakayo?

Please visit the CKRC website and tell me which of the views recorded for posterity over there and which particular session you found a bit dubious, slightly shady, more than suspect, not on the up and up, less than kosher, leaning to the haram side?

Perhaps it was that public hearing at Khwisero Primary School on the 6th of August, 2002? Or you may be referring to the session at the PCEA Church in Kabete on Friday, April 19th, 2002?

There is a distinct possibility that you are thinking of how the gullible wananchi gathering at the Nyeri County Hall at 10:00 am on the 18th of July 2001 and comprising Mt. Kenya Law Society, Shelter Women of Kenya, Supkem, Safina, Sustainable Empowerment and Agricultural Network, Citizen Small and Medium Industries of Kenya, Build Kenya, Maendeleo ya Wanawake - Kiambu, Councillors, Catholic Dioceses, Justice and Peace, NGO's, Chamber of Commerce, Mau Mau Veterans Society, KNUT, DP, Churches and other individuals were callously hoodwinked by the following convicted hoodlums:
Prof. Yash Pal Ghai - Chairperson
Prof. A. Idha Salim - 1st Vice-Chairperson
Mrs. Abida Ali-Aroni - Vice-Chairperson
Pastor Zablon Ayonga - Commissioner
Dr. M.A. Swazuri - Commissioner
Mr. Isaac Lenaola - Commissioner
Mr. Riunga Raiji - Commissioner
Dr. Charles Maranga - Commissioner
Mr. John M. Kangu - Commissioner
Ms. Nancy Baraza - Commissioner
Mr. Ahamed I. Hassan - Commissioner
Bishop Kariuki Njoroge - Commissioner
Mr. Zein Abubakar - Commissioner
Dr. Abdirizak Arale Nunow - Commissioner
Dr. Mosonik arap Korir - Commissioner
Mr. Domiziano Ratanya - Commissioner
Hon. Mrs. Phoebe Asiyo - Commissioner
Mr. Paul M. Wambua - Commissioner
Ms. Salome Muigai - Commissioner
Ms. Kavetsa Adagala - Commissioner
Mrs. Alice Yano - Commissioner
Mr. Ibrahim Lethome - Commissioner
Mr. Githu Muigai - Commissioner
Mr. Arthur Okoth-Owiro - Commissioner

And that nambar moja on that list is a one devious Muhindi is he not? Or perhaps you had in mind a meeting in Embu the previous day organized by the same unsavoury majambazi ama namna gani jirani wa Vancouver?

Tell me something Ndugu: who was twisting the then Shadow Attorney General's arms when he gave his views before the commission on the 6th of December 2001?

Do you think that members of the Pastoralists and Hunters-Gatherers Ethnic Minority Network were duped when they showed up in Nairobi on Monday, 15th of July 2002 to give their views?

Now perhaps, like you and others, I would be a BIT CAUTIOUS before I trusted an opinion by someone with a name like Prof. Wanyande, Prof. Ogot, Prof. Ojwang', Prof. Wandiga, Prof. Okoth-Ogendo or heaven FORBID! Dr. PLO Lumumba! and certainly NOT Raila Amolo Odinga. You see, they all happen to be Luos- and you KNOW just how those jadhes and omera biro biros are. So let us RULE THEM OUT completely.

But how about someone like Njeru Kirira of Global Economic Investments and Financial Consultancy?

How about Gerrishon K. Ikiara of the University of Nairobi presenting a paper on Decentralization and Greater Regional Autonomy for more Efficient Management: Fiscal, Resource Distribution and Related Issues on the 14th of December 2001?

Gichane Muraguri Claims:
It is a fact that Bomas Draft was voted for by 314 delegates of Bomas
III participants. 315 walked out. Hence more delegates (out of 629)
disagreed with their own document, than those who hurriedly wrapped
itup in record speed to prove a point. Infact the Bomas draft is
referred to as a "protest document" by both sides.The courts declared
the document null and void because it was obtained fraudlently.
Now "Kenya B" is in the same courts.

Nd. Gichane, Here is My Response to That:

I too attended Bomas as an observer. More than that, throughout the duration of my two month stay in Kenya I was based in the residence of Bomas Delegate number 131, Mwandawiro Mghanga, the Mjumbe for Wundanyi. Ndugu Gichane: I cannot BELIEVE that you countenance the despicable SULKING EPIDEMIC led by my former lawyer Kiraitu Murungi. If at all "more delegates were opposed to the Bomas Draft" why didnt this majority stay in the hall and shoot down the Zero Draft to zero by simply voting it down? There was a reason why walked out Muraguri. They did so because they had been ROUTED politically and democratically. Remember how they tried to use Bishop Sulumeti? Remember the number of road blocks-including some literal barricades to prevent the constitutional conference from even taking place? Remember the POLITICALLY motivated MURDER of Bomas Devolution Committee Chair Dr Crispin Odhiambo Mbai? Remember Kiraitu boasting that he had used state funds to keep his cabinet colleague Raila Odinga under surveillance during this period? You see, Nd. Gichane, the Bomas process was not a heavily guarded clandestine affair cloistered in a tight lipped omerta cult of silence. On the contrary, Bomas was a mammoth public event that was covered every single day in the print and electronic media. Kenyans from abroad like yourself, myself, Adongo Ogony, Mshai and many many others were able to attend Bomas as observers and report on our reflections. What I noticed at Bomas was a lot of vigorous discussion and you know that I vehemently opposed their stance on dual citizenship and it was thanks to our collective efforts, with you being right there that were able to turn them around on that issue. How were we able to reach them if they had been as backward and reactionary as you portray them? Again, when I hear people dismiss these delegates I ask: who are they talking about? Are they talking about people like Mwandawiro, Willy Mutunga, Wahu Kaara, Edward Oyugi, Khalif Khelefa, Odenda Lumumba and a whole bunch of Kenyan veteran socialists from across the country that I met at that conference? Are they talking about our Nobel Peace Prize laureate with whom I had a very passionate exchange over dual citizenship? It is really unfortunate what you are doing Nd. Gichane by trashing all these patriotic daughters and sons of our beautiful mother Kenya. The Bomas document is NOT a "protest document"- on the contrary, it is the draft of the new NATIONAL DEMOCRATIC Katiba that was ratified and endorsed by the delegates to the national constitutional conference.

Ndugu Gichane You Add:

It was shameless for the Bomas delegates to have degenerated to such
a mediocre level of insincerity and dishonesty especially after the
billions this process has consumed so far. The main victim
is "wanjikus" of course, and none of the the pro or anti bomas draft
can claim the high moral road on this issue.

Oloo Counters:

Do you know WHO degenerated, Nd. Gichane? It was the NAK side which used every trick in the book to try and reverse their own written submissions before the CKRC about the executive, devolution of powers and other key recommendations they had made when Moi was still in power Nd. Gichane, the one person who is NOT suffering from Alzheimers or amnesia is Onyango Oloo.

Ndugu Gichane Says:

I watched the process as an observer, it was very very very sad. In some quarters i was been asked how much i'm paying for a "yes" to dual citizenship, bribery was the order of the day every evening in the posh hotels where the delegates were being accomodated.

Eg, Dual citizenship was denied in the Zero Draft(committees reports), but the armies were in place for a fight for it in the plenary session, that was supposed to review decisions from the
committees. That is how it qualified to be contentious because the Pro Dual forces were a critical mass by the time we went to the plenary session to debate all motions filed in respective committees.

And I say:

No significant gains come without sacrifice and struggle. The whole dual citizenship thing as I mentioned, was turned around through a massive effort that included a monster world wide petition campaign spearheaded by the KCA.

Nd Gichane You Say:

My take on this is having a fraudulently patched up Kilifi draft constitution to be seen to have delivered an election promise is double fraud. Having us to endorse a fraudulent Bomas draft is also fraud. So?

I am for the counting our losses early before the bill goes to 10 billion. A "YES or a NO" on damaged goods will still leave us with constitutional constipation.

And I say:

Now you are being politically DISHONEST, Nd. Gichane. Kenyans are NOT confused about which document is a straight up forgery and which one was imbued with widespread consultations. Do not stain the Bomas process (of course it was NOT perfect-Kenya was under the Moi-KANU neocolonial kleptocracy) with the contagion of the Kilifi Vampire.

You Conclude:

Lets do it again! We have the views collected from mwananchi still intact. The process boggeys only when the delegates went to Bomas.

Constitute BOMAS IV.

This time around, it should be done in an inclusive and representative manner. Then if we can agree, then we for a revolution. Making a constitution in peace time is very difficult.

maani, kamacharia

Mwananchi Mwenzangu Gichane Wacha Nikusimulie Hadithi:

Paukwa? Pakawa, Sahani etc....
Way back when I was a Form Five student at HH The Aga Khan Kenya Secondary School( now the Aga Khan Academy) in Mombasa, a traumatic event happened to me at the end of the third term. You see I used to take the Literature, History and Economics combination with General Paper of course being mandatory. At that time, our school had two "A" Levels streams- Science and Arts. What used to happen back then was that the Third Term exams (of course the 4th and 6th Formers wrote their finals and were therefore excluded) were used competitively to determine who get prizes for being the top student in various subjects. I was determined to have a clean sweep in all four subjects. I was already the top student for GP for both streams and was the best student in Literature and History. It was in Economics where was a three way see saw between Chetna P. Hiten S and myself. I was very pleased with myself when I managed to edge out Chetna who had been kicking our butts for most of the year(although most of the time a two or three percentage point difference is all that separated # 1 from # 3). So I was expecting 4 prizes. But guess what? Now I am not going to say it had something to do with the fact that I was an African student from a middle class background in a class where there were only two other Black faces in a sea of upper middle class Kenyans of South Asian descent. In any case, both Hiten and Chetna petitioned Mr De Souza our Economics teacher who promptly "re-marked" the papers, shaving off five points from me, allowing Chetna to "retain" her top ranking. But that was not all. Mrs. Lewis, my Literature teacher who hailed from Kerala state in southern India announced that the Literature prize would go to Fatima the runner up because I had been dominating with top marks. So, even though officially I was still the top Lit guy for that year, I did not get the Lit prize. The only people who stood their ground was Ms Morris my made in England General Paper teacher and Mr. Meghji, my born in Zanzibar history mwalimu. By the time the ceremonies rolled around, I had become so disillusioned that the two prizes did not mean that much to me anymore. When you ask for Bomas IV, Gichane, you remind me of those sore losers from my Form Five class almost a quarter of a century ago. By the way, I see people repeating this mantra about constitutions and revolutions. Nd. Gichane, you have NO IDEA how close to a revolutionary situation the conditions in Kenya are right now.

By the way Ndugu Gichane you had said something earlier about "Kenya "B" being in court. So who is Kenya 'A'? I was always under the DELUSION that we had only ONE Kenya. Do not tell me I have hallucinating all these years...



SUMMING UP:

Let me be BLUNT.

The current objections to the Bomas Draft are driven largely by motives imbued through and through with ill disguised UKABILA.

And yes, comrades and friends in the NCEC- I am talking about you too.

Onyango Oloo
Montreal
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