The Committee of Experts that drafted Kenya’s new Constitution are sending a strong message to African countries and the EAC member states in particular, to discard post-colonial constitutions for improved governance.

As they called it a day last week, committee chairman Nzamba Kitonga said the delay by some countries in coming up with homegrown constitutions has led to political instability and social upheaval in Africa.

A powerful presidency has contributed to the conflicts witnessed in African states, where candidates for the position are propelled by the prospective beneficiaries of their leadership.

Devolved governance, as provided for in the Kenyan constitution is among ways the public can be assured their welfare will be catered for, regardless of the presidency, explained Mr Kitonga in an interview with The EastAfrican.

“County governments ease pressure from the centre. If people in the regions are assured of their welfare, the seat of the president is unlikely to be controversial,” Mr Kitonga explained.

Kenya was rocked with violence after the 2007 general election, with sections of the public protesting the results of the presidential vote that declared Mwai Kibaki the winner.

More than 1,500 people died while property worth millions of dollars was destroyed.

The new constitution was part of the truce that was mediated by former UN secretary General Kofi Annan, and other members of the African Panel of Eminent Persons — former Tanzania president Benjamin Mkapa and the wife of former South Africa president Nelson Mandela, Graca Machel.

The negotiations helped achieve a consensus that led to the signing of the National Accord. In order to achieve lasting peace and prosperity, the accord under Agenda Four required that a new Constitution be enacted.

Parliament enacted the Constitution of Kenya Amendment Act 2008 and the Constitution of Kenya Review Act 2008, to serve as the legal framework for achieving a new constitution. 

The Review Act required the Committee of Experts to finalise its work within 12 months. The draft produced in the review process was passed by the National Assembly and then put to the people of Kenya in a referendum.

The new Constitution was promulgated by President Mwai Kibaki on August 27 at a ceremony attended by among others, President Yoweri Museveni of Uganda, Paul Kagame of Rwanda, Comoros’ Ahmed Abdalla Sambi and, controversially, Omar al Bashir of Sudan.

Mr Kitonga is particularly encouraged that Kenya’s neighbour Tanzania is thinking of reviewing its Constitution and urged the EAC member state to take a leaf from Kenya.

“Post-colonial constitutions were designed for transition purposes. They may not be the best to run the states 50 years after independence. There is a need to revise them, ” said Mr Kitonga.

Mr Kitonga pointed out countries like Zimbabwe and Zambia as those that need to take cue from Kenya.
Kenya’s old Constitution, negotiated in London, dates back to the country’s independence from Britain in 1963.

Kenya’s ruling party under the one-party state amended the Constitution over 30 times for purposes that included centralising power and strengthening executive authority.

Agitation for constitutional reform in Kenya began around 1990 and was accompanied by calls for multiparty elections, presidential term limits and expanded political freedom under the highly repressive Kanu political party regime led by retired president Daniel Arap Moi.

The primary impetus for reform came from Kenya’s civil society, including religious and human rights groups, which mobilised opposition political parties and their supporters and helped create a popular movement.

But the religious groups particularly the majority of Christian faiths, at the end opposed the Constitution they had fought for.

Mr Kitonga identifies this as one of the lowest points of the constitution-making process — when a group of the clergy made non-contentious issues major topics of discussion that could have derailed the process.

According to the programme of the implementation of the new Constitution, parliament is expected, after setting an oversight committee, to design a law for the creation of an implementation commission. The draft of the law is in place and will be tabled before the House shortly.

Parliament is at the same time expected to pass 49 bills and ensure 700 other legislations conform with the new constitution.

All this needs to be done before the next general election, which is slated for August 2012. If MPs do not pass the laws and inquire into the conformity of the other 700, the new Constitution empowers the president to dissolve the House and call an election.