Introduction

A juxtaposition of the newly published (in May 6^th 2010) proposed constitution now the subject of the August 4^th referendum, and its antecedent, which, though it dates as far back as 1963, has predictably undergone several amendments even as recently as 2008, surfaces three conjectures. First, the overlap between the two documents mainly at the topical and to some extent at the substantive level may suggest dependence by the “committee of experts” on the current document for organization of material and the committee’s recognition that there are aspects of the current constitution that apply or must apply today. Second, the introduction of new material in the proposed constitution or the evidence of alteration of the current constitution reveals the determination of the “people of Kenya” (through the committee) to set the country on a new path of thought and praxis for better or for worse. Third, omissions of certain aspects of the current constitution in the proposed constitution betray the judgment by the committee that the omitted material is outdated, irrelevant, or no longer acceptable. A clear example of omission due to archaicism is the section on who qualifies as a citizen after 11^th December 1963 (articles 87-89). Other examples of omission are: (1) exceptions to the prohibition against forced labor (73.3) (2) exceptions to protections of freedom of movement (83.3) (3) prorogation and dissolution of parliament (59.1-4) (4) the whole of article 15a which has to do with the position of the prime minister (5) minimum age limit of a presidential candidate (2b).

Overlap Between the two Documents (i.e., the 2008 version of the 1963 constitution and the May 6^th 2010 proposed constitution)

Chapter 1 of the current constitution (hereafter abbreviated as cc) and chapter 2 of the proposed constitution (here after abbreviated as pc), share the same title (“the Republic”) presumably because Kenya has never ceased to be a republic. The committee has all the intentions of maintaining the three branches of government; thus the retention of the chapters on the executive (chapter 2 of cc and chapter 9 of pc), the legislature (chapter 3 of cc and chapter 8 of pc), and the judiciary (chapter 4 of cc and chapter 10 of pc), Even though worded slightly differently in pc, the chapter on human rights (chapter 5 of cc and chapter 4 of pc), testifies to the committee’s recognition that as long as there are humans there will always be the need to protect their rights. Other chapters that share the same title are: citizenship (chapter 6 of cc and chapter 3 of pc), finance (chapter 7 of cc and chapter 12 of pc), public service (chapter 8 of cc and chapter 13 of pc), and land (chapter 9 of cc and chapter 5 of pc).

Besides topical overlaps, there are contents of cc that reappear in pc. Some re-appearances are verbatim. Some, even though reworded, retain the same meaning. A few examples will suffice: (1) the Kadhis’ courts (article 66 of cc and article 170 of pc) (2) immunity from prosecution for a sitting president (article 14.1-3 of cc and article 143.1-3 of pc) (3) term of office of president (article 9.2 of cc and article 142.2 of pc), (4) contingencies fund (article 102.1 of cc and article 208.1-2 of pc) (5) Kenya shall remain a democratic state (article 1.1a of cc and article 4.2 of pc) (6) reasons for deprivation of citizenship (article 94:1-2 of cc and article 17.1-2 of pc) (7) freedom from discrimination (article 82.3 of cc and article 27.1-8 of pc) (8) protection from inhumane treatment (article 74.1 of cc and article 29d of pc) (9) protection from slavery and forced labor (article 73.1-2 of cc and article 30.1-2 of pc) (10) protection of freedom of thought or religion (article 78.1-4 of cc and article 32.1-4 of pc) (11) freedom of expression (article 79.1 of cc and article 33.1 of pc) (12) freedom of association (article 80.1 of cc and article 36.1 of pc) (13) protection of right to property (article 75.1-7 of cc and article 40.1-4 of pc) (14) presumption of innocence, access to an attorney, adequate time for defense (article 77.2 of cc and articles 49-50 of pc) (15) unsound mind, imprisonment, and bankruptcy as disqualification to run for parliamentary elections (article 35.1b-d of cc and articles 99.2 e-g of pc) (16) missing eight parliamentary sessions as grounds for being required to vacate a parliamentary seat (article 39.1d of cc and articles 103.1b of pc) (17) the qualifications for the speaker and the deputy speaker (article 37.1/38.1 of cc and articles 106.1 of pc) (18) the requirement that a presidential candidate receive a minimum of twenty five percent of the votes in at least five of the eight provinces (article 5e of cc and articles 138.4b of pc) (19) existence of a judicial service commission (article 68 of cc and article 171 of pc) and (20) consolidated fund (article 99 of cc and article 206 of pc).

Introduction of New Material in the Proposed Constitution and Alteration of the Current Constitution

It is inescapable to any reader of pc that it not only departs in a major from cc, but arrives with new material altogether. New material include: (1) the preamble which, in citing among others the environment, human rights, culture, ethnicity, seems to be a broad summary of the content of the constitution (2) designating only three holidays (Jamuhuri day, Madaraka day, and Mashujaa day) as national days and empowering parliament to designate other national days (9.3-5, N/B Moi Day is no longer recognized as a national day and Kenyatta day has been renamed “Mashujaa day” probably to discourage the tendency of presidents to name national holidays after themselves) (3) promotion of Kenyan culture through the media, traditional celebrations, literature, etc (11.1-3) (4) citizenship rights for a child found in Kenya and who appears to be eight years old or below but whose parents are unknown (14.4) (5) the declaration that life begins at conception followed immediately by allowing abortion in certain situations (26.2-4) (6) freedom of media (34:1-5) (7) access to information (35.1-3) (8) social rights that include a prohibition against receiving emergency medical treatment (43.1-3) (9) rights to language and culture but with a prohibition against involuntary subjection to a cultural rite or practice (44.1-3, female circumcision may be in view here) (10) family law that recognizes that marriage is between two people of the opposite sex (45.1-4) (11) consumer rights (46.1-3) (12) right to remain silent and the requirement to be brought to court within twenty four hours (49.1) (13) rights of persons in custody (51.1-3) (14) rights of children (53.1-2), the disabled (54.1-2), youth (55), minorities and marginalized people (56), and older members of society (57) (15) state of emergency (58), Kenya human rights and equality commission (59) (16) whereas cc only addresses public or trust land, pc additionally discusses community land (63.1-5) and private land (64) and also establishes a National Land Commission (67) (17) environmental and natural resources (69-72) (18) a whole chapter on leadership and integrity (chapter 6, articles 73-80; article 79 instructs parliament to enact legislation to establish an independent ethics and anti-corruption commission) (19) a chapter that addresses the electoral system, an independent electoral and boundaries commission, and political parties (chapter 7, articles 88-92) (20) there shall now be a bicameral legislature (senate alongside the national assembly) which by the way originates not in the United States but in the ancient Libyan (African) city, Cyrene (articles 96 and 98) (21) a set general election date (101.1, second Tuesday of August) (22) right to recall a member of parliament (104.1-2) (23) time frame within which someone can file a lawsuit questioning the validity of a presidential election and the number of days the supreme court has to offer a ruling (140.1-2) (24) a parliamentary vote is part of the process of removing a president out of office due to incapacitation (144.10) (25) impeachment of the president (145.1-7) (26) qualification of an attorney general nominee spelt out and appointment has to be approved by parliament (156.2-3) (27) establishment of a supreme court (162.1) (28) the appointment of the chief Justice requires the recommendation of the Judicial Service commission and the approval of parliament (166.1) (29) set qualifications for the chief justice (166.3, fifteen years of judicial experience either as a practitioner or an academician) (30) retirement age of a judge set at 70 and a term limit of ten years set for the chief justice (167.1-2) (31) a chapter on devolved government (articles 174-200) (32) revenue funds for the county government (article 207), partly raised from taxes (article 209, income tax, value added tax, excise tax, custom duty), managed by the commission for revenue allocation (article 215) officer of the controller of budget and auditor general split with each of its heads subject to parliamentary approval and must meet certain qualifications (articles 228-229) (33) establishment of a salaries and remuneration commission (article 230) (34) a whole chapter on national security (articles 238-247) (35) a whole chapter on the running of commissions and independent offices (articles 248-254)

Examples of alterations are: (1) dual citizenship is no longer grounds for revocation of Kenyan citizenship (article 16 in pc, cf. 97.1-3 in cc) (2) the number of days that the president has to respond to a bill requiring his signature reduced from 34 to 14 (article 46.2-4 of cc and article 115.1 of pc) (3) quorum raised from thirty to fifty (article 51 of cc and article 121 of pc) (4) composition of the parliamentary service commission (article 45B.1 of cc and article 127.2 of pc, must include women and non-parliamentarians) (5) the speaker, not a minister, is third in command if the presidency is vacated (article 146.2b in pc, cf. 6.2b in cc) (6) the presidential running mate automatically becomes the deputy president as opposed to the president nominating a vice president (article 148.1 in pc, cf. 15.1 in cc) (7) ministers to be renamed cabinet secretaries and these will no longer be members of parliament; parliament will have to approve the secretaries (article 152.3 in pc, cf. 16.2 in cc) (8) the minimum number of judges that can constitute the court of appeal raised from two to twelve (article 164.1a in pc, cf. 64.2 in cc) (9) excluding the chairperson and the deputy, members of the public service commission reduced from eleven to seven and appointments subject to parliamentary approval (article 233.2 in pc, cf. 106.2 in cc)

Open letters to the Church Components of the “Yes” Camp (aka green team ) and the “No” Camp (aka the red team)

Open Letter to the Church Component of the “No” Camp

The red team can be viewed as a venn diagram made up of two overlapping circles.

One circle represents part of the church. Leaders of this group include the leadership of the Catholic Church in toto (case in point: copies of the Pastoral letter dated 15th April, 2010 and signed by His Eminence John Cardinal Njue on behalf of the 25 Catholic Bishops who include among others Philip Sulumeti, Anthony Muheria,, and Jackson Kosgey), leadership of NCCK led by chairman Rev Charles Kibicho, the leadership of the Anglican Church of Kenya led by the ACK House of Bishops, and a number of Evangelical leaders such as Bishop Willy Mutiso of the Evangelical Alliance, Bishop Gerry Kibarabara of the Gospel Assemblies of Kenya, Bishop David Oginde of Christ is the Answer, presiding Methodist Bishop Stephen Kanyaru, Bishop Winnie Owiti from the Voice of Healing and Salvation and Bishop Barija Kirongah. This group is irked chiefly by the abortion clauses (though some members of this group would include the Kadhis court clause) and will only support the proposed constitution if this clause(s) is (are) amended.

The other circle represents those who are rejecting the proposed constitution for reasons other than the two clauses. Some members of this group are motivated by politics (case in point: the Daily Nation report that three Rift Valley MPs—David Koech, Isaac Ruto and Elija Langat—promising to support Cyrus Jirongo for 2012 presidential bid if he “helped shoot down the constitution”).

The overlapping section represents the group whose basis for rejecting the proposed constitution does not stop with the two clauses. Members of this group include Ruto and Moi. The latter has cited others reasons such as taxation, foreign interference in the implementation of the proposed constitution, and the clause that requires that cabinet secretaries be non MPs. The former has uttered several claims such as the proposed constitution allows gay marriage, the land laws in the proposed constitution are dangerous, and regions like Ukambani are not fairly represented in the section about devolved government.

Dear Church,

Your reason to distrust the government to amend the constitution after it has been passed is founded on your experience with a government that turned you down during your negotiation talks. You offered suggestions such as the president promising to use executive order to amend the constitution and the suggestion was not taken up. Because of you Kenya may be saved from going the American way where permission to abort is now stare decisis (or settled law).

My beef with you is that you have not done good job of distinguishing yourself from the group that rejects the proposed constitution for reasons beyond the two clauses. In the event that the “no” side wins you may find that you have to support amendments other than the two clauses to avoid being viewed as letdowns or deceivers or traitors.

Open Letter to the Church Component of the “Yes” Camp

The green team could similarly be viewed as a two-circle venn diagram but in this case one circle is a subset of the other.

The inner circle represents (part of) the church that is as bothered as the rest of the church by the two clauses but prefers to pass the proposed constitution and then seek amendments later. The leadership of this subset includes the Anglican Bishop of Southern Nyanza Diocese Rt. Rev. James Kenneth Ochiel, Bishop Pius Mukoto of the African Church of the Holy Spirit (quoted as saying that “gains made so far in the acquisition of the proposed constitution cannot be down played, ignored and dragged through the mud, especially by the church for flimsy reasons”), Other prominent church leaders in support of the proposed constitution include retired cleric Timothy Njoya

The outer circle represents the group that has opted to sacrifice the concerns raised by the abortion clause at the altar of the superiority of the proposed constitution. The primary leaders of this group are Raila and Kibaki.

Dear Church

Bravo for highlighting the superiority of the proposed constitution compared to the current constitution. Indeed Kenya is facing the classical situation of baby and bath water or the presence of one rotten egg in a pack of many good eggs. The baby must be saved. The good eggs must be preserved.

My question to you is: how sure are you that the government will amend the two clauses you are concerned about? Didn’t parliament (including Raila and Kibaki who were present) pass the draft constitution without a single amendment on the week of July 5^th 2010? How sure are you that things will be any different?

Conclusion

In light of the government’s untrustworthiness on the question of amending the constitution to the liking of the church, the church should vote no. At the same time the church leadership should assure its members that it has all the intentions to pass the amended proposed constitution. Kenya with an unamended proposed constitution will cause God to turn his face away from us. Kenya without the amended proposed constitution will have to live with the regrets of a lost opportunity.