Swirling Constitution undercurrents: last year President Kibaki promised Kenyans a new constitution by June 30, 2004. The draft has been completed and passed but the issue has opened deep fissures within the ruling coalition. There is talk of a public referendum. Alnoor Amlani provides the details.

Author:Amlani, Alnoor
Position:Kenya - National Constitutional Conference

On the surface, it was all sweetness and light when, on March 15, the long-standing National Constitutional Conference (NCC) talks finally ended successfully with the completion and publication of a draft constitution. This concluded the people-driven drafting process initiated in the 1990s and places the new NARC government firmly back in charge of the process. Underneath the surface however, strong undercurrents have been stirring.

During the 2002 elections, many opposition leaders who vehemently championed the cause for a new constitution were successfully elected into government. In a miscalculated move however, some of these government leaders threatened to block the draft--and as a result plunged the country into a fresh constitutional crisis.

A revealing event of high drama, courtesy of a group of cabinet ministers and MPs in the closing moments of the conference, symbolised the crisis. The final debate on executive power was marred by a vocal protest and walkout. Some of the most senior ministers of the coalition government and a group of MPs in attendance protested that the proposals made by a consensus building group's talks in the final weeks of the conference were not debated, amended and adopted by the NCC, and then walked out in protest.

The NCC delegates then checked if they had the required quorum (minus the ministers and MPs) and calmly proceeded to pass all the contentious clauses, thereby completing their work earlier than anticipated.


Terming the draft constitution a "negotiated instrument", NCC chairman Yash Pal Ghai revealed his frustration with some review commissioners, namely the Minister of Justice and Constitutional Affairs, Kiraitu Murungi, and the chairman of the Parliamentary Select Committee, Paul Muite. He also revealed his two previous attempts to resign were rejected first by former-President Moi and then by President Kibaki.


The hostility between delegates stems from a dispute over political boundaries and power sharing. One issue is whether to retain the presidential form of government or to adopt a parliamentary system similar to the French and Indonesian governments. The NCC voted for the parliamentary system, which includes an executive prime minister who will be appointed by the elected president (who will not have day-to-day executive power).

A significant faction of the NARC government disagrees with this. Some analysts have argued that this is an inevitable...

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