Three weeks ago, a task force of the Constitution of Kenya Review Commission (CKRC) announced that the Commission would not be able to finish its work by the October 4 deadline. The announcement, however, opened a can of worms with a cross-section of Kenyans expressing their dissatisfaction, while at the same time, the CKRC chairman, Prof YASH PAL GHAI , came under criticism by some commissioners over his insistence that the Commission was essentially on track. Last week, Special Correspondent FRED OLUOCH spoke with Prof Ghai about these and other concerns.

Well, I don't know; that question can be better answered by others. I have just been trying to explain that we have two approaches to the extension issue and we plan to have discussions as a commission to reach consensus. 

Under the Review Act, the question of extension depends on parliament. Our job is only to request an extension and justify why we need extra time. 

Given your stance on the issue, would it be fair to say that the decision to seek an extension was made behind your back?

No. It is important to understand that we have not made any decision as a commission on the issue. We have only stated that we will require an extension but we have not resolved whether it will be till December or June next year. 

A wrong impression has been created that I disowned a statement which I signed together with the others. While the majority wanted an immediate announcement, my own view was that the commission should not request an extension without a clear explanation why we need it and how much time we would need to complete the exercise. I believe that was the only point of difference. 

To what extent, in your view, have the squabbles eroded the credibility of the commission in the eyes of ordinary Kenyans?

I am not in a position right now to tell to what extent these public differences have dented our image. What I know is that continued public bickering could lead to public disillusionment. But when I walk the streets talking to people, the impression I get is that the public still has confidence that the commission will fulfil its national obligation and give the country a good and fair constitution. We have been lucky so far in that the public confidence in us remains intact. 

Wouldn’t it be better for the commission to take its time rather than finish within the remaining period and risk being accused of a rush job?

I don't know why people say that. The Review Act sets different stages that have been followed scrupulously. We have a large staff and the level of remuneration for the commissioners enables them to work round the clock. This makes us the largest full-time commission that I know of in the world. 

We have district co-ordinators and constituency forums that continue to mobilise the people, while at the same time, we have received 6,000 memoranda that are already being analysed by our excellent team of data analysts. In addition, we are the only commission that will visit every constituency given that others only visit provincial capitals. That, to me, does not give the impression of a rush job. 

What about the allegations that you are imposing your views on the commission and that you want to hurry up the review so you can take up another lucrative contract in an Asian country?

In regard to the first question, it is not my style to be dictatorial. If I were, then we could have started collecting public views as early as February. My style emphasises discussion and going by the majority view.

The second allegation is absolutely not true. I have not signed any contract since I took up this job. However, it is true that I received three or four "interesting" offers since I came to Kenya, which I would not consider lucrative.

If money were the issue, then I wouldn't be here in Kenya earning a third of what I used to earn in Hong Kong as a law professor. 

There are those who say that most commissioners are more loyal to their pay packages and their 'political handlers' than to their duty of constitution making.

No. A large majority of the commissioners are dedicated and work very hard. In fact, the public does not know how hard the commissioners have been working and I want to dispel the impression that they are only interested in money. They are discharging their national obligations effectively. I also don't think the majority of commissioners have political handlers. 

Why did you suggest the removal of the referendum provision in the Constitution of Kenya Review Act?

The point here is somewhat technical and it is important that the public get it right. During the merger negotiations between the statutory commissioners and the clergy-led Ufungamano Initiative, it was agreed that a referendum should only be necessary on important issues that cannot be solved at the National Constitutional Conference through consensus and subsequently endorsed by a two-thirds majority of the members. 

But there was a slight hitch at the drafting level, where the referendum was stipulated as the next step in the absence of a consensus instead the two-thirds majority vote. The Attorney-General, Mr Amos Wako, has noticed the problem and asked me to prepare a note on the same, since there is always a mechanism to amend a piece of legislation that has failed to capture the intention of the legislators. 

But if mere differences in approach among the commissioners can generate so much heat, what can Kenyans expect at the National Constitutional Conference?

Well, at the moment, the views we have been received from the public show a remarkable degree of congruence. This is also true for the various political parties that have forwarded their positions, though we are yet to receive the Kanu view. 

The bottom line here is that Kenyans are generally in agreement in regard to the strengths and the weaknesses of the current constitution as well as the need to move forward. 

As a result, people may be surprised how much common ground we strike at the conference. But we are yet to receive all views and the position could change. 

Is it proving more difficult to come up with a new constitutional dispensation than you had earlier thought, and if so, why?

Yes, the process has proved more complicated than I thought, but not in terms of content. What has proved difficult is the internal workings of the commission. 

The Act set up goals and values that Kenyans would wish to see enshrined in the new constitution, and there has been a universal support for these values. For instance, people are giving their views without fear and the provincial administration has been very co-operative, contrary to earlier fears. The commission has also managed to generate debate on national issues. I am pleased with the progress we have made so far. 

Then why is there talk that you might resign in frustration, and that certain quarters would relish this?

Sometimes, a job becomes more frustrating than was expected. But in this case, I came in knowing that I would face a number of frustrations. But Kenyans have been demanding a good constitution for a long time now, and it would be irresponsible for the commission, especially me, not to complete the work we were given.