Can Kibaki or Uhuru give Kenya a new constitution after polls?
 

By FRED OLUOCH

Kenyans may have to wait for the next five years to enjoy the benefits of a new constitutional dispensation despite widespread hopes that a new document will be in place within six months after the December 27 elections. 

Legal experts that The EastAfrican spoke to concurred that a combination of logistics, unforeseen legal hitches and vested political interests are likely to hinder the immediate implementation of a new document irrespective of who wins the election battle pitting Mwai Kibaki, the presidential candidate for the the united opposition – the National Rainbow Coalition (NARC) – against Kanu's Uhuru Kenyatta. 

It is now emerging that while it will be difficult to implement a new constitution midstream without negating the spirit and principles under which the sitting government was elected, the prospects of a fresh general election to effect a new constitution, are quite slim. 

For one, the country will be severely strained financially to go for a fresh election soon after another, coupled with the fact that the electorate will be mentally and physically fatigued to fully take part in a similar exercise.

The forthcoming election will cost Ksh4.6 billion ($59 million), which, according to the Electoral Commission of Kenya chairman, Samuel Kivuitu, is less than the Ksh 5.7 billion ($73 million) the commission had sought.

President Moi dissolved the Eighth Parliament on October 25 to pave the way for the elections, despite consistent appeals by a cross-section of Kenyans who would have wished to see the transitionary elections held under a new constitution.

In the process, the dissolution robbed the National Constitutional Conference – that was to take off on Monday last week – the 222 MPs listed as part of the more than 640 delegates who were supposed to debate the draft constitution, the product of a 10-year agitation for a new constitutional order. 

Despite indications that the constitution will be a major campaign issue, coupled with the expected public agitation for a new constitutional order soon after the elections, there are strong indications that the earliest Kenyans can fully utilise the new constitution is the 2007 elections, its earlier completion notwithstanding.

Kanu has remained cagey over its stance on a new constitution should it retain power, while NARC operatives persistently assert that they will implement a new document within 100 days of their taking over government. Yet, other quarters perceive NARC's undertaking as a mere vote-catching stunt rather than a considered and practical position. 

Futile attempts by President Moi to wind up the Yash Pal Ghai-led Constitution of Kenya Review Commission (CKRC), coupled with Kanu's refusal to sign an undertaking committing it to the review process soon after the elections, are seen as a manifestation of the ruling party's rejection of the process that has so far cost the country over Ksh4 billion ($51 million). 

According to Gitobu Imanyara, the outgoing MP for Imenti Central and a lawyer by profession, both camps would like to use the issue of a new constitution as a political tool while knowing well that they have no control over it, since its implementation will depend on who gets the two thirds majority in parliament. 

Veteran lawyer Lee Muthoga concurred that it would be difficult to implement the new constitution without a fresh election. He, however, argued that depending on the national mood, it is possible to have presidential elections without parliamentary elections and vice-versa, since elections are made general to reduce costs – thus the simultaneous holding of presidential, parliamentary and civic elections. 

Alternatively, Muthoga says, it is possible for the government of the day to negotiate for grants from its donors if the exercise is perceived as being central to the country's economic prosperity and political stability. 

The danger, he says, is that the sitting president has the greater capacity to manipulate the results, given that his hands will be free, unlike in the general elections where everybody is fighting for survival. In addition, MPs shall have been guaranteed a five-year term by the current constitution and may not be comfortable with fresh polls. 

According to the outgoing MP for Mbita, Otieno Kajwang', "It would be foolhardy to expect a president who has just won an election to order fresh polls for the sake of accommodating a new constitution. Even the public will not expect that of him." 

Kajwang maintained that there will be no need for fresh elections, only to give priority to areas which have been excluded by the current constitution, such as a new structure of government that includes the creation of the post of the prime minister, and the strengthening of civic authorities – where the direct election of mayors was among the key proposals. 

Fresh elections aside, there is debate about who between Uhuru and Kibaki is best placed to give the process priority once he gets to power. 

Opposition members believe that the implementation of a new constitution is likely to take longer in the event that Uhuru wins, taking into account President Moi's distaste for the draft constitution released in early September by CKRC.

Uhuru on his part maintains that the review process should not be rushed in order to allow greater debate and wider acceptance. 

But even as fear is mounting that the highly charged political atmosphere arising from the Moi succession would make it difficult to implement a new constitutional order midstream, both Uhuru and Kibaki, (whoever wins) will be in great need of a system that would allow a greater power-sharing mechanism for the sake of stability of the government. As it is, individuals surrounding them will not be satisfied with mere ministerial posts, which some of them have held for years.

According to Muthoga, it would be more difficult for Uhuru to push for a new constitution even if he personally desires it. This is because he will be preoccupied with the curtailment of Moi's influence in his government, which could take a while, given that the initial stages of his government would need the support of the same individuals he may be wishing to ease out. 

Notably, after inheriting power from the late Jomo Kenyatta in 1978, President Moi had to wait until 1982, when he capitalised on the attempted coup to completely jettison the vestiges of the Kenyatta government.

The people surrounding the two aspirants, especially Uhuru, believe that their own man is in a better position to give Kenyans a new constitution. 

Yet, unlike Kanu, where President Moi's presence could militate against post-election disintegration, the heavyweights-laden NARC, if it wins, will be hard-pressed to quickly craft a broad-based government before signs of dissatisfaction begin to show.

On the contrary, Imanyara suspects that even the opposition would wish to retain a powerful presidency for sometime as a means of enforcing the much-talked about economic reconstruction. The draft constitution kicked off a controversy by proposing a major reduction in the immense presidential powers. 

However, Joseph Kamotho, a leading proponent of NARC and the secretary-general of the Liberal Democratic Party, clarified that the opposition grouping is promising to embark on the remaining stage of the reform process, while maintaining that certain aspects of the new constitution, such a a new structure of government, will be easy to implement.

As he put it, "our objective is to end the concept of a one-man rule and introduce a new brand of leadership based on a government of national unity."

Still, Kibaki and NARC will have to contend with the fact that Africa is wanting in precedents and the example of the immediate former Zambian president, Fredrick Chiluba, is cited as a case in point. Chiluba won the elections on a reform platform in early 1990s, but reneged on the promise once in power. 

So far, South Africa's Nelson Mandela holds the record as the continent's notable reform president who honoured his promise of a comprehensive constitution once in power.