Kenyan Pundit

So I was supposed to do two more posts on the referendum - one on devolution and one on the youth…but that was before I forgot my FES cheatsheet at this place where i was do-ee-a-ring on the highspeed connection and then once I got the cheatsheet back and made it all the way to the cybercafe, I realized that I didn’t have my flashdisk that had the commentary from the speakers….foiled again. Hopefully I should have them up in the next day or two.

Then there’s going to be a live TV and radio debate on the referendum that promises to be both substantive (Ok we hope) and hot I was itching to live blog, but I have a flight to catch later on tonight and I am not sure how much of it I’ll be able to catch. My mum has generously made the services of her little ka-handheld radio available so that i don’t miss anything on the way to the airport so hopefully I will be able to blog most of the debate. Those of you who listen to the radio online shouldn’t miss it…if anything it signals some progression in Kenyan politics and in the media’s role of keeping the public informed. On the “No” side will be Mutula Kilonzo, Anyang’ Nyong’o, and Chris Okemo. On the “Yes” side will be Raphael Tuju, Paul Muite and Mukhisa Kituyi. I was having dinner at my aunt’s place last night and the general consensus was that the “No” lineup sounded “more impressive.” We’ll see how that pans out (the “No” ground campaign is definitely the one that’s on a roll).

So where am I off to? To Camden, Maine for this year’s Poptech Conference. I will be attending as one of the twelve Sun Pan-African fellows. I am super-excited to be attending the conference, looking forward to meeting with the other fellows (including Ndesanjo of Jikomboe), hope to return with some concrete ideas/projects, and will try not to be over-geeked (gawked?) out while I am there.

The next presentation by Dannitah Ghita from the League of Kenyan Women Voters dealt with the status of women in the constitution. She felt that overall there was a “net loss” for women when you compared the Bomas Draft with the Wako Draft. She listed the following as some of the gains for women:

o Citizenship – women can now confer citizenship on a spouse or a child, however, in Bomas was automatic but in Kilifi is not guaranteed but is subject to approval.
o Bill of Rights – recognizes that women and men have equal rights (section 38).
o Specific protection for property rights
o Affirmative action – 1/3 of the party lists reserved for women (but less than what was proposed in Bomas in terms of its application e.g. Bomas extended to government commissions).
o At no time shall parliament consist of more than 2/3 of one gender.
o Constitution supercedes customary law where it conflicts as far as discrimination against women.

Some of the losses:
o Under Bomas, gender balance was a criteria for political party funding. Kilifi/Wako, mentions gender balance as important but not mentioned as a specific criteria.
o Abortion is not permitted without an act of parliament even in cases where the woman’s health is in danger.

3-part cribbed from FES handout comparison.

1. Current Constitution

- Bill of Rights does not accord emphasis to the rights of women.
- Provisions on citizenship discriminate against women (sec 89 and 90)
- Legal status of women negated by exceptions relating to recognition of customary law in respect to personal law matters.
- Gender equality only recognized with respect to nominated MPs.
- No party funding and no links to gender balance
- No guaranteed seats on constitutional commissions or other public bodies.

2. Bomas Draft
- Bill of Rights emphasizes the rights of women and minorities - Chapter 6
- Prohibition of any law (including customary law) that treats men and women differently.
- Property rights of women accorded recognition and protection
- At least 1/3 of the affirmative action seats reserved for women. Representation in the senate include at least two women from each region (lost in Kilifi)
- Gender balance to be a criterian for political party funding.
- Guaranteed seats on constitutional commissions and other public bodies (lost in Kilifi)

3. Kilifi/Wako Draft
- Bill of Rights emphasizes right to equal treatment and the need for special measures to redress imbalances.
- Prohibition of any law (including customary law) that treats men and women differently.
- Property rights of women accorded special protection.
- Special seats for women and at least 1/3 of the party list seats reserved for women
- Gender equality and equity required in principle but no relationship to party funding
- No guaranteed seats on constituional commissions or other public bodies.

A few weeks ago I attended a workshop on the proposed new constitution that was sponsored by Friedrich Ebert Stiftung. The forum was free and open to the publc. The workshop focused on 6 thematic areas of the new constitution - Representation, Women’s Issues, Devolution, Land and Natural Resources, Media, Executive Powers and Youth. The aim of the workshop was to look at the Wako draft in light of what the different stakeholder (I hate this word but you can’t avoid it) groups involved in Bomas wanted and in light of the current constitution. What follows are some notes I took at the workshop.

The next part of the workshop focused on land issues. The presentation was done by Odenda Lumumba from the Kenya Land Alliance. There didn’t seem to be much controversy over the land provisions and according to Lumumba most of the Bomas provisions were retained in the Wako draft. One of his main concerns, however, was property protections only seem to apply to matrimonial and inheritance cases…what about single women? He also called the referendum process a zero-sum game…jump of the cliff with an imperfect constitution or retain the bad constitution? In his view, the politicians have outwitted Kenyans yet again.

Particular things to note as far as the provisions related to land:

- Kilifi does more than protect the right to property – women’s property rights are specifically mentioned;
- Protection of the environment is specifically mentioned;
- Calls for national land policy;
- President no longer has the power to allocate land;
- Non-citizens can only hold land on a leasehold basis for not more than 99 years (controversial provision in some quarters, some argued there’s nothing to prevent a non-citizen from temporarily transferring land to a citizen to get around this provision ).

And the cribbed from FES handout 3-part comparision.

1. Current Constitution

- The President has special powers under ordinary legislation to make grants of government land to individuals.
- There is no recognition of environmental rights and no requirements on regulation of land use.
- There is no requirement for a national land policy.
- It is not clear who land belongs to and designations in ordinary laws are equally unclear.
- Property rights of spouses not protected and could actually be whittled down by recognition of customary law.
- Land use is unregulated.
- Non-citizens can hold any interest in land for any term.
- No National Land Commission

2. Bomas Draft

- Would have been expanded recognition of land as a national resource (Chapter 7, Sec 58).
- Requirement for a national land policy
- Land belongs to Kenya as a nation and is designated as either public, community, or private.
- Land use is to be regulated.
- Property rights of spouses will be protected.
- Non-citizens to only hold land on leasehold for not more than 99 years.
- National Land Commission to be established.
- National Environment Commission to be established.
- There was to be expanded protection of natural resources

3. Wako/Kilifi Draft

- There will be expanded recognition of land as a national resource (Chapter 7, Sec 38).
- Requirement for a national land policy
- Land belongs to Kenya as a nation and is designated as either public, community, or private.
- Land use is to be regulated.
- Property rights of spouses will be protected.
- Non-citizens to only hold land on leasehold for not more than 99 years.
- National Land Commission to be established.
- National Environment Commission to be established.
- There was to be expanded protection of natural resources

Part 4 dealing with Women’s Issues to follow…

A few weeks ago I attended a workshop on the proposed new constitution that was sponsored by Friedrich Ebert Stiftung. The forum was free and open to the publc. The workshop focused on 6 thematic areas of the new constitution - Representation, Women’s Issues, Devolution, Land and Natural Resources, Media, Executive Powers and Youth. The aim of the workshop was to look at the Wako draft in light of what the different stakeholder (I hate this word but you can’t avoid it) groups involved in Bomas wanted and in light of the current constitution. What follows are some notes I took at the workshop.

After an overview of the topics to be discussed during the workshop, the first panelist to present was Paddy Onyango who works with the Citizens’ Coalition for Constitutional Change (4C’s). He has been involved in the movement for a new constitution from the very beginning and is a veteran of the Nyayo House torture chambers (an aside: read “We lived to tell” for survivors’ accounts of the Nyayo House torture chambers…people we have come a long way, lets not forget that even as the country struggles to tackle with unfinished business).

Paddy Onyango spoke about Presidential/Executive powers. Here are the notes I took during his presentation:

- Key question to ask is why Kenyans wanted a new constitution when they went to the streets. The main issue was the extremely strong presidency/concentration of power in the executive and the lack of checks and balances. We had and still have a dual system of development and justice – one for the rich and one for the poor. Those who could benefit were those who supported the president.

- The goals of the movement for constitutional change were: reconstructing the Kenyan State; ensuring that the people remain at the center of the review process; ensure that the process was lawful and legitimate; wanted to bring not just regime change, but also systematic change.

- What kind of constitution was expected out of the process: a product that entrenches the sovereignity of the people; and constitution that would end ethnic chauvinism of the political elite.

- His thoughts on the Executive in proposed constitution: the Executive remains a demi-god; think about allocation of resources, state of emergency etc. still controlled by the executive; there is a danger of retaining ethnic hegemony

- When reading the Kilifi/Wako draft look at where the words “may” versus “shall” are used (trust the lawyers!) when it comes to Parliament’s checking and vetting power…those who claim that Parliament has teeth under the Wako draft have not read the draft closely.

- Under the Kilifi Draft, the Prime Minister is nothing more than the leader of government business and can be fired at any time on the whims of the president

- As for impeachment, under Bomas the lower house would originate the accusations, senate would do the hearing. Under the Kilifi draft, first there is no bicameral legislature so the process is completely different. There is no due process since one body is responsible for bringing forth the accusations and conducting the “trial”.

- The Kilifi/Wako draft is dangerous in the absence of a benevolent dictator.

Here’s the 3-part comparison on Executive powers…again cribbed from the FES document.

1. Current Constitution
- President is both the head of state and government. All public servants serve at the pleasure of the president.
- Vice President has no defined roles, besides being principal assistant
- Presidenct can hold office in a political party.
- The President cannot be impeached. Parliament can pass a vote of no confidence by a majority of all the members but the president does not have to leave office and can dissolve parliament instead.
- Executive consists of the President, V-P, Ministers and Assistant Ministers.
- No Prime Minister.

2. Bomas Draft

- There was to be power sharing between the President (head of state with delineated powers) and the Prime Minister (Head of government).
- Executive authority was to be vested in the President, the Deputy President, the Prime Minister, and Ministers, all of whom, in the performance of their respective functions are required to “work in the harmony for the good of Kenya and the progress of the people of Kenya.”
- The Deputy President would have defined roles.
- The President and Deputy President are barred from holding office in a political party.
- President can be impeached on the motion of 2/3 of the national assembly.
- Prime Minister is head of government with defined powers.
- Prime Minister is to assisted by 2 deputy prime ministers and ministers appointed by him/her.
- President cannot dismiss Prime Minister at will.
- Key appointments would have required parliamentary approval.

3. Kilifi/Wako Draft

- The President is both the head of state and head of government (no power sharing). Has sole executive authority.
- The Prime Minister is merely the Chief Minister/first amongst equals.
- Key appointments will require parliamentary approval.
- There will be a deputy president with defined roles.
- President and Deputy President are barred from holding office in a political party.
- President can be impeached on the motion of over 50% of the members of the national assembly.
- Prime Minister is assisted by 2 deputy prime ministers and ministers appointed by the president.
- President can hire and fire the Prime Minister at will.

Part 3 to follow…leave a comment if anything needs clarification.

Via the Christian Science Monitor.