Katiba Debate

Got this from Facebook where a very interesting discussion is going on. For more info, visit the Soma Katiba group on Facebook - link here .

Otherwise some content on merits and demerits of the proposed constitution:

by Kimathi Kamencu

Merits

Chapter 1
1. The introduction of a Preamble is a step forward. You will remember (from yesterday’s discussion) that we had noted the lack of “local ownership” of our independence constitution. The preamble sets us out as a distinct people with a distinct history.

Chapter 2
2. The recognition of the Devolved Government structure is also a positive provision in the PNC. You may have heard it said that some people groups in Kenya regard a journey to Nairobi as a visit to Kenya. It is hoped that the devolved structure will provide a framework that is real and equitable. More comments on this when we discuss the relevant chapter.

3. Recognition of Kiswahili as a national language is like music to my soul! I recall having recently read a poem entitled “English is a stupid language”. Well, whereas I wouldn’t go this far, I do think that Kiswahili is a language that is just as good (if not better) than English. To add to this, is the fact that it is our own, one of the jewels of our heritage. Like one of the 8 – 4 -4 text books one would wish to say “Kiswahili kitukuzwe!”

4. The inclusion of national values in the constitution is an important step in setting out for government what we, as citizens, expect whenever governmental power is being exercised. My heart is greatly pained whenever corruption is uncovered or when I see the dishonorable treatment of people in what are commonly called “operations”. Will this provision really bring these things to a halt? Your bet is as good as mine.

5. Culture (and particularly intellectual property/innovations) has been included and this is good. To quote the Final COE report to the National Assembly:

“…in an age when there have been external attempts to alienate, privatize and patent the indigenous knowledge, intellectual property rights and innovations of Kenyan communities such as the ciondo and kikoi, it is important to provide for the protection of intellectual property.”

Chapter 3
6. The chapter on citizenship has made ground in leveling the plain amongst genders. First of all, it provides no limitation to the right of a child acquiring citizenship by birth so long as either one of his parents is a Kenyan by birth. Secondly, men who are married to Kenyan women are entitled to apply for Kenyan citizenship.

7. In a world that now is being referred to as a “global village”, dual citizenship is a timely provision. Who knows, perhaps this may lure President Obama to retire to K’Ogello rather than Illinois!

Demerits

Chapter 1
1. Article 2 (6) is a worrisome provision. It seems to give automatic constitutional status to international agreements that Kenya has agreed to. It is not clear why this provision was included by the COE in this final draft given that all previous drafts did not contain it. Further, all the other COE drafts required treaties to be considered and approved by Parliament. This provision has been deleted and no explanation is given in the final COE report.

Given this state of affairs, it is possible for the State President to enter into international agreements that may be inconsistent with the will of the Kenyan people. These provisions would be on an equal footing with other provisions of the Constitution.

2. Article 3 provides for defense of the constitution. To defend the constitution, one should know what is says. As such, it would have been good if an additional provision were included to provide for dissemination and education on the Constitution.

Chapter 2
3. There has been much debate on Article 8 which provides that “there shall be no state religion”.

The initial Harmonized Draft by the COE contained three provisions: (a) State and religion shall be separate; (b) There shall be no state religion; and (c) The state shall treat all religions equally. Provisions (a) & (c) were removed by the Parliamentary Select Committee.

In the absence of the provision “the state shall treat all religions equally” there is concern that favoritism may be shown to some religion(s) over others.

Chapter 3
4. The provision on “foundlings” (Article 14) is also of concern. Given the fact that Kenya has numerous porous borders and a significantly more robust economy than many of its neighbors, it is possible that this provision may be misused. Where the country receives a huge influx of such foundlings (who will be presumed to be citizens), this could have negative effects in the long run.

The COE was requested to amend this provision so that such children would be required to apply for citizenship. However, they declined on the basis that it would be hard for the children to apply. In the alternative, they introduced a provision (Article 17) that would allow for nullification where the child is shown to be a citizen of another country.

Constitution Must Treat All Religions Equally

A Commentary by Pete Ondeng and Peter Waiyaki

The public discourse on whether or not the Kadhi Courts should be included in the constitution has been wrongly interpreted by many to be a Christian vs Muslim affair. The often uninformed rhetoric by hard liners on both sides of the argument adds an unnecessary and potentially explosive element to the already charged political atmosphere.

The issue here is not about religion, but about the constitution. The move to change the current constitution springs from an acknowledgement by most people that there are wrongs in the document that need to be made right. There are some basic rights, for instance, that the original constitution did not address, and which need to be enshrined in the new document. Similarly, there were some provisions that were included by those who negotiated the Lancaster House document that no longer hold water and need to be scrapped.

The Parliamentary Select Committee (PSC) retreat in Naivasha, which was expected by many to degenerate into an ODM vs PNU muscle-flexing contest, pleasantly surprised the nation by reaching consensus on almost all of the so-called contentious issues.

In regard to the Kadhi Courts, however, the PSC missed the point and actually went astray. Curiously, the draft constitution that emerged from that retreat omitted a simple but critical phrase that had appeared in all the many draft constitutions that have been produced since the first one in 2002. All previous versions of the Draft Constitution have consistently stated categorically that “State and religion will be separate, there will be no state religion and that all religions will be treated equally. These provisions have now been removed, leaving only that There Will Be No State Religion. Most people are not aware that this small but significant change was made in Naivasha.

Why was this phrase removed, and what would be the significance of its absence in the constitution? The only logical conclusion would be that the new constitution does not acknowledge all religions as equal.

The Constitution enunciates equality for all citizens. Further it provides that nobody shall be discriminated against by reason of their religion, among other things. Unfortunately, the Kadhi courts are themselves an institutionalization of inequality. They seek to favour one religion over others by creating and protecting and providing for state funding of a purely religious system of dispute resolution.

One of the central arguments from those who advocate for Kadhi courts to be included in the constitution is that the courts have been in the constitution since independence. This is very true. The courts did not accidentally end up in the constitution but were a part of the negotiations between Jomo Kenyatta and the Sultan of Zanzibar which led to the 10 mile coastal strip being incorporated into the Republic of Kenya at independence. However, these historical reasons and context no longer apply. What was then a concession to a small part of the country and a very small part of the population has now become a demand and a right applicable to the whole country.

Excluding the Kadhi courts from the new constitution would not in any way hinder the rights of Muslims to worship Allah or to establish courts and other mechanism of dispute resolution. The role of the Kadhi as a religious office will remain intact, organized and funded by the Muslim community, in the same way as other religions will be required to fund their own activities.

The only effect of not including the courts in the constitution would be that, like for all other religions, there would be no funding using tax payers money, and the offices for Kadhis would be recognized rightly as religious offices, and not government office. Most importantly, the draft constitution that will soon be presented to Kenyans for a referendum must include the important clause removed by the PSC: that all religions will be treated equally.

Pete Ondeng is a development economist & author of Africa’s Moment; Peter Waiyaki is an advocate of the High Court of Kenya