Kenya will go to the next general election with a "negotiated" constitution as opposed to the much-expected new one.

This will definitely be in favour of the ruling party, Kanu, which has all along resisted complete overhaul of the constitution but grudgingly gave in to pressure by the opposition, who perceived a new constitution as the only means to break Kanu's 39-year hold on power.

This comes in the wake of strong indications that the Parliamentary Select Committee on Constitutional Review, led by Energy Minister Raila Odinga, is likely to reject the request by the Constitution of Kenya Review Commission (CKRC) for an extension of its tenure by eight months. 

Indications by Mr Odinga last Thursday, that "the commission could be asked to hand over what they have gathered so far and told to to go home" could be seen in this light. 

The 27-member CKRC had in April conceded that it could not deliver a new constitution by the October 4 deadline amid major differences between the commission chairman, Prof Yash Pal Ghai, and a section of the commissioners over how much extension time the commission needed to complete its work. 

Prof Ghai, however remains optimistic that the commission can deliver a draft constitution by October, even as most of his commissioners remain adamant that the remaining period is not sufficient for a meaningful review other than a "rush job." 

Last week, a meeting between the commission and the committee to decide whether the commission needed extra time, failed to come up with a definite decision on the extension, which will now be decided on May 23. 

With evidence that the commission cannot deliver a new constitution before the general election, scheduled for December, Kenya faces the prospect of a negotiated settlement akin to the 1997 Inter-Parties Parliamentary Group (IPPG) minimum reforms that enabled the country to hold the elections after a protracted impasse over a new constitution. 

The Kanu secretary for legal and constitutional affairs, Mr Otieno Kajwang', last week confirmed that a negotiated constitution was the only remaining option if the country was to go to the elections with the desired new constitution.

"This is something that can take less than a month since all the parties are clear on what they want included in a new constitution," said Mr Kajwang. He also conceded that the Kanu-dominated parliament will now play a key role in the review process. 

Prospects of a negotiated settlement are also heightened by the fact that though Prof Ghai and the general political mood favour a new constitution by December, there are strong indications that the burning issues of land ownership, majimbo (federalism) and the contentious issue of ethnicity, are likely to bog down the process at the National Constitutional Conference that is meant to take a maximum of one month. 

Thus, political temperatures are expected to rise once more given that the insistence by President Moi that the review can only be undertaken by parliament, and the fear that Kanu was out to manipulate the process for political expediency, is what led to the establishment of the clergy-led parallel commission – the defunct People's Commission of Kenya, popularly known as the Ufungamano Initiative. 

Already, there is a strong feeling within legal circles that parliament is steadily encroaching on the mandate of the commission.

Two weeks ago, parliament passed the controversial Miscellaneous Law (Amendment) Bill, 2002 that among other things, will significantly alter the country's electoral laws.

These include the provision that the votes will be counted at the polling station and the continuous registration of voters.

Though these changes will be welcome across the board, a good number of Kenyans had hoped that the commission would comprehensively address itself to Kenya's botched electoral system that favours the ruling party Kanu.

Earlier in the year, Prof Ghai had openly expressed concern that parliament was "encroaching" on the mandate of the commission by enacting laws that could be construed as interference with the constitutional reform process. His "worry" stemmed from the fact that piecemeal amendments to the constitution and laws of Kenya could have an overall effect on constitutional issues that are being handled comprehensively by the commission.

It is now emerging that Prof Ghai, who maintains that the commission is capable of coming up with a new constitution by December, has been let down by a section of his commissioners who want to prolong the process in order to allegedly continue earning their handsome salaries and perks. 

A proposal by Prof Ghai that the commissioners constitute themselves in a panel of two for the constituency hearings to enable the commission complete its work by December, has been strongly resisted by the commissioners, who argue that they had earlier constituted themselves into panels of three when they toured Central Province in April and would not like to be seen as giving preferential treatment to certain sections of the country. 

The commission started collecting views from the public on April 17, with Prof Ghai – who was appointed in December 2000 to rescue the review process following a stalemate between the Kanu government and the opposition – then arguing that the work could be completed on time if the commission split into smaller units. 

Prof Ghai has often expressed apprehension that there is danger of the country losing the momentum of the constitutional review should the country go to the elections with the current constitution. In Prof Ghai's strong belief, "there is no guarantee that the next government will be favourable to constitutional reform."

This was supported by Mr Kajwang', who observed that "the work of commissioners is simply to collect views and receive memoranda. They don't have to do that as a large group."

Mr Kajwang', who also heads the Parliamentary Committee on Administration of Justice and Legal Affairs, said that some of the problems experienced by the commission were due to the fact that parliament denied Prof Ghai the executive powers that could have enabled him to run the commission effectively. "We were suspicious that a chairman with executive powers could muzzle free expression within the commission. We now realise that the provision that major decisions could only be made by a majority vote left the chairman susceptible to the commissioners and less room for manoeuvre," he observed.