Tracing the treacherous, bloody road to enactment of new laws

The long road to the 2010 constitution began in the late 1980s through agitation for political and constitutional reforms by fearless opposition leaders, clergy and civil society groups.

It, however, picked up momentum on July 7, 1990, when opposition leaders Oginga Odinga, Masinde Muliro, Kenneth Matiba, Charles Rubia, Martin Sikuku, Raila Odinga, Gitobu Imanyara, Paul Muite and Njeru Gathangu, among others, led the Saba Saba uprising in Nairobi.

While demanding reforms, they also protested against one-party dictatorship and mismanagement of the economy. They also wanted judicial reforms, an end to human rights abuses, and the need for a free liberal media, freedom of speech and association among other rights.

Matiba, Rubia and Raila had been arrested three days earlier for urging Kenyans to turn up in large numbers for the demonstrations, while the late George Anyona and Gathangu were beaten by government agents.

Shikuku, Muliro and Orengo, however, managed to lead thousands of Kenyans to the Kamukunji grounds, where hundreds of heavily armed anti-riot police and those on horseback engaged them in day-long running battles using tear gas, stun grenades and rubber bullets.

As calls for constitution reforms increased, especially from senior clergymen in the Catholic and protestant churches led by Ndingi Mwana'aaba Nzeki, Alexander Muge, David Gitari, Henry Okullu and Timothy Njoya, so did repression by the government.

In 1997, President Moi agreed to allow the review process after Raila Odinga’s NDP merged with Kanu to form New Kanu, and as the then MP for Langata, the current ODM leader was appointed to chair the Parliamentary Select Committee on Constitution Review. Parliament enacted the Constitution of Kenya Review Act 1997 to manage the process.

The 1997 general elections were held on the understanding that the government coming into power would review the country's constitution, but after Kanu won, it became reluctant to fulfil its promise for constitutional reforms.

In 1998, did however a law was passed to set up a multi-sectoral commission to spearhead the review process. Commissioners were to come from Kanu, opposition parties, religious organisations, women agencies, professional bodies and non-governmental organisations.

 But after other groups provided names for appointment, KANU declined, challenging the number of commissioners it was entitled to. They argued that, as a ruling party with a parliamentary majority, they should have been given the greatest number of commissioners.

Still, Raila and Attorney General Amos Wako spearheaded the process fairly smoothly, leading to the recruitment of Prof Yash Pal Ghai to chair the Constitution of Kenya Review Commission (CKRC) from early 2000.

In April 2000, Raila’s committee shocked the opposition, religious leaders and the civil society when he announced that they had decided former president Daniel arap Moi was to appoint 15 members of the commission from the 21 names they had given him.

Loud protests emerged especially from the Ufungamano Initiative, a parallel process led by religious leaders calling for a people-driven, transparent review process, as Moi went ahead to appoint the 15 members, all nominees of Kanu stalwarts.

The likes of Joseph Kamotho, William Ole Ntimama, Sharff Nassir, Kalonzo Musyoka, Musalia Mudavadi, Nicholas Biwott, Joe Nyagah, Simeon Nyachae and Raila himself were asked to present names from their regions. Raila also nominated the head of secretariat, the late lawyer Okoth Owiro, who served briefly before he was replaced by PLO Lumumba.

Protests from Ufunamano continued through a parallel review process known as the People’s Commission of Kenya (PCK). It was chaired by the late MP for Gem constituency, Dr Oko Ooko Ombaka.

Tension began building, stalling the process as civil society, student leaders, and opposition leaders, Mwai Kibaki, Wamalwa Kijan,  and Charity Ngilu joined forces with the Ufungamano house group.

Before the government team of 15 started working, the PCK moved quickly to start collecting and collating views from Kenyans on a new constitution.

The Government's commission claimed legality, but PCK claimed legitimacy as the team that had blessings from all stakeholders in the country. Ghai declined to take the oath of office, forcing Moi and Raila to merge the two processes, interrupted briefly by the 2002 presidential elections.

After moving to all corners of the country to conduct an extensive civic education exercise and collect views, CKRC convened the Bomas delegates conference that brought together 640 people representing diverse interests.

While campaigning for the presidency, Kibaki had promised to deliver a new constitution within the first 100 days, but that never materialised.

The review stuttered because of the tug of war between him and Raila in the National Rainbow Coalition (NARC) government after they defeated Kanu in December 2002. The feud was over a disregarded pre-election MoU. Raila and his group also accused Kibaki of dragging his feet by not convening the Bomas conference.

The conference, bringing together the 640 delegates from across the country, was, however, convened with the two sides of the political divide pulling in different directions.

The Draft Constitution of Kenya 2004, commonly known as The Bomas Draft, was the outcome of the National Constitutional Conference held at the Bomas of Kenya for a total of 139 days from April 2003 to September 2004.

The first conference (Bomas I) lasted from April to June 2003, while Bomas II lasted from August to September 2003. Bomas III, which finalised the “Bomas draft constitutional Bill”, lasted from January until March 2004.

The Bomas draft, produced in March 2004, proposed to significantly reduce presidential powers and create a powerful prime minister. It also called for a strong Senate to oversight the National Assembly and a properly devolved system of government.

Government delegates led by the Minister for Constitutional Affairs, Kiraitu Murungi, and other Kibaki me led a large section of the delegates in a walkout from Bomas before the final draft was passed.

Ghai appeared unhappy that all the efforts he had put into creating a consensus were now being scuttled. The exercise had indeed been sabotaged because neither President Kibaki nor any of his ministers were present at all when the draft was unveiled.

The process finally stalled after Raila and his LDP wing of Narc, which included Kalonzo Musyoka, teamed with Kanu leaders Uhuuru Kenyatta and William Ruto and civil society to mobilise three-quarters of the delegates to pass the draft.

After that confusion, Ghai resigned and returned to his teaching job at Hong Kong University as Kibaki replaced him with Commissioner Abida Ali-Aroni, who took charge of another interesting part of the process.

It was during her time that Wako and the newly appointed select committee chairman, Simeon Nyacha, marshalled MPs to seriously assault the Bomas draft. They changed the system of government from a parliamentary to a presidential system.

As expected, Raila and his team mobilised two-thirds of Kenyan voters to defeat the referendum Bill on the constitution in November 2005.

In 2007, following the disputed presidential election, another process kicked off. It was agreed that the constitution review agenda be dealt with urgently in the National Accord brokered by former UNSecretaryy General Kofi Annan.

It led to the creation of the Committee of Experts (CoE), chaired by the late Nzamba Kitonga. They released the Harmonised Draft Constitution to the public on November 17, 2009 and consequently received views that culminated in the review of the Harmonised Draft Constitution.

The CoE presented a report and the Revised Harmonised Draft Constitution to the Parliamentary Select Committee, now chaired by Abdikadir Mohammed, on Friday, 8 January 2010.

In Naivasha, the MPs again went against decisions made by the people. They decided that the President would be elected by universal suffrage with a majority vote of 50%+1, with 25% in more than half the counties.

The office holder was to be both head of State and Government and should have a running mate. That went against the demand parliamentary system of government by Kenyans at the Bomas conference.

The CoE had listed the contentious issues in their report to PSC as follows: system of government, devolution, and Transitional and consequential provisions. These issues were covered in chapters 10, 12 and 19 of the reviewed harmonised draft constitution.

With the political backing of both Kibaki and Raila and many politicians from across the political divide, including civil society, the referendum on the constitution finally passed in 2010, when Kibaki promulgated the 2010 constitution.