The evening of March 15, 2004, was like no other. A group of delegates from across the country, who had camped at the Bomas of Kenya grounds for nearly a year, broke into song and dance to mark the conclusion of a historic constitution-making exercise.
Led by Chairman of the Constitution of Kenya Review Commission (CKRC), Prof Yash Pal Ghai and General-Secretary, Prof PLO Lumumba, the delegates — who included representatives of the Church, civil society as well as MPs — danced in jubilation as ululations by supporters outside the conference hall rent the air.
The jig to the Isikuti drums of the Luhya stretched on long after Ghai and Lumumba had presented the so-called “Bomas Draft” to participants. And as darkness set in, the Isikuti died down, a symbolic indication all was not good, after all.
Indeed, some, like Prof Ghai, were aware the exercise had been sabotaged by State operatives and were probably just dancing away their frustrations: “Some senior politicians did not like the final product because it gave an important role to the people of Kenya in the running of the State. So they tried to sabotage it, including my fellow commissioners who, for selfish reasons, assisted in ruining our efforts,” regrets the CKRC Chairman.
Signs that the document would be trashed became evident when President Mwai Kibaki and senior officials of his government, including Cabinet ministers, skipped the final and all-important day of the constitutional conference.
Earlier, Justice and Constitutional Affairs minister, Kiraitu Murungi, led a walk-out of MPs and delegates allied to Kibaki from the meeting. The then-Imenti South MP famously remarked the Bomas Draft was “some kind of mongrel” which was unacceptable to Kenyans “because we cannot have two centres of power”.
Kiraitu, now the Governor of Meru County, was referring to the design of the Executive, particularly the positions of President and Prime Minister. The Bomas Draft recommended a parliamentary system of government, where a President is elected directly by the people, then appoints the leader of the largest or second-largest party in the National Assembly as Prime Minister.
According to the Bomas Draft, the President was a symbol of national unity (without membership of any political party), and with the responsibility to safeguard the sovereignty of the country, promote and respect the diversity of the people and safeguard the Constitution. The PM presided over government functions and co-ordinated legislative work as well as the work of ministries. He or she also appointed ministers, in consultation with the President, and could fire them.
This arrangement, according to Murungi, was untenable because it robed a president elected nationally through universal suffrage of executive powers to rule, “and instead donated the same to a premier selected merely on account of being a leader of a large political party”.
The biggest threat to the Bomas Draft, says Prof Ghai, was the politicisation of the process. Most delegates were split between political forces of President Kibaki and Roads and Public Works Minister Raila Odinga, with discussions on the Executive being undertaken with the two bigwigs in mind.
With Kibaki hoping to extend his presidential term in office and Odinga angling for the post of PM, the two camps dug in with each negotiating for a favourable deal and powerful office. The differences centred mostly on whether the President should sack the PM without reference to Parliament. While politicians allied to Kibaki’s Democratic Party wanted the President to enjoy such powers, those allied to Odinga’s Liberal Democratic Party (LDP) and Opposition leader Uhuru Kenyatta’s Kanu, wanted those powers to be vested in Parliament.
Except for the highly vested political interests, Prof Ghai maintains there were no major challenges: “The process went on well and the final document was adopted by a huge majority.” Besides proposed changes to the Executive, Bomas focused mainly on governance, devolution, accountability and the Bill
The process lasted nearly three years — with the first two years being utilised for collection and collation of public views, through public hearings and memoranda. The draft document was preceded by debate and ratification at the National Constitutional Conference of delegates at the Bomas of Kenya — hence the reference “Bomas Draft”. An estimated 640 members participated.
The Bomas Draft was a product of the Constitution of Kenya Review Act enacted in 1997, during the Kanu regime of then-President Daniel arap Moi. The Review Act envisaged a process driven by the Parliamentary Select Committee, which immediately ran into opposition, with calls for a people-driven process. The result was the so-called Ufungamano Initiative, bringing together religious and civil society organisations and opposition parties, spearheaded by Gem MP, the late Dr Oki Ooko Ombaka.
But unwilling to preside over a controversial process, Prof Ghai declined to take oath of office as CKRC chairman until the dispute between PSC and Ufungamano was resolved. The following year, the Constitution of Kenya Review (Amendment) Act was enacted, expanding the Ghai Commission to 27 members to include representatives from religious and civil society organisations.
The Ombaka commission had already started visits across the country to solicit views from the public when the Moi government caved in to pressure to roll out an official review process. However, the combined efforts under CKRC could not be completed before the December 2002 elections, as Moi moved on to suspend the review exercise. But the opposition and civil society undertook to continue the process after the elections with Kibaki, the presidential candidate of the National Rainbow Coalition (Narc) promising to give Kenyans a new constitution within the first 100 days of his government.
But once safely in office, Kibaki and his allies from the National Alliance Party of Kenya (NAK) wing of Narc, which comprised his DP, Kijana Wamalwa’s Ford-Kenya and Charity Ngilu’s Rainbow Alliance, changed tune. The process was further poisoned by Kibaki’s apparent trashing of a pre-election Memorandum of Understanding (MoU) to appoint Mr Odinga of LDP wing as PM.
With political blackmail, backstabbing and twists and turns, the exercise eventually stalled after the Odinga-Kalonzo Musyoka-led LDP, with support from Kenyatta-William Ruto-led Kanu, successfully teamed up with civil society to push through the “progressive constitution”. Two-thirds of the delegates approved the document with Prof Ghai exiting as CKRC boss five months later.
“I did not resign from the commission. As far as I was concerned, our process as a commission was over. I was Professor of Law at the University of Hong Kong and my university was anxious that I return as soon as my work in Kenya was over,” explains Prof Ghai.
President Kibaki swiftly replaced him with CKRC commissioner Abida Ali Aroni, who Prof Ghai claims was friendly to the government. Pro-Kibaki MPs then moved to alter its contents, particularly on the Executive. This exercise was spearheaded by Attorney-General Amos Wako during a retreat in Kilifi County, hence the reference of “Wako” or “Kilifi” draft.
The new amendment provided for an executive president and a nominal PM appointed by the former. But Kenyans shot down the proposal by voting in favour of Oranges (against Bananas) in the November 2005 plebiscite.
Ideally, although the Kibaki administration promised to deliver a new constitution within the first 100 days in power, it took him more than 2,920 days to deliver on his promise in August 2010.
Reflecting back, Prof Ghai believes Bomas was a “great success”. This view is shared by the Chairman of Council of Governors, Wycliffe Oparanya, who points out that Bomas remains a point of reference “from which constitutional reforms and amendments are borrowed”.
