In Summary
  • Triumphant possessions were the greatest honour a general could receive, and if the luck of times came together, he could end up becoming the new emperor or something quite close to it.
  • Nothing happened, and mass action ensued, leading to violence and deaths. Two opposing groups were then formed to deal with the pending review.
  • Instead, the promulgated constitution was presidential, extremely wide in its Bill of Rights, and adopted a rather essentially monist approach to domestication of international treaties.

For the Jubilee side, anything that Raila Odinga says is absolutely wrong, dangerous and treacherous. For Nasa, anything President Kenyatta says is abusive, misguided and threatening.

This is faulty by all rational standards, more so when these two men have many virtues and some certain pitfalls, as every human being does.

How did the Presidency in Kenya become a religion? What mistake did we make for a president to remain so relevant when the 2010 Constitution took away almost all exclusive powers?

The president has no powers to make appointments without Parliament’s vetting; he does not approve expenditure or control revenue; he cannot allocate land at will. 

History usually unlocks uncountable mysteries and intentions. For example, in the Roman Empire, triumphal possessions celebrated heroic deeds performed by the greatest generals; they were no mean feat.

Generals with triumphal possessions were received in Rome with the greatest possible pomp.

Such a procession was only awarded to generals whose conquest complied with four characteristics: First, the battle must have been fought on foreign soil; second, the conquest should have added at least 100,000 square miles to the Roman Empire; third, the general's army must have killed at least 5,000 enemies in one engagement; and fourth, the general must bring to Rome the spoils of victory.

Triumphal possessions were the greatest honour a general could receive, and if the luck of the times came together, he could end up becoming the new emperor or something quite close to it.

This messianic approach to the Emperor, the Conqueror, the President, is still very much with us in Kenya. We are so polarised that our leader of choice has become truly infallible, everything they do or say is a triumphal possession.

UFUNGAMANO INITIATIVE

Making the 2010 Constitution was not a straight, simple path.

In the 1990s, the Kenya Human Rights Commission, the Law Society of Kenya and the International Commission of Jurists (Kenya Chapter) drafted and circulated a “Proposal for a Model Constitution”. 

Extensive consultations and workshops were organised. Pressure mounted on Daniel arap Moi, who was president at this time, to announce plans, on January 1, 1996, to invite experts to draft a Constitution for consideration by the National Assembly.

Nothing happened, and mass action ensued, leading to violence and deaths. Then, two opposing groups were formed to deal with the pending review.

One group, the ‘Ufungamano Initiative’, backed by national religious organisations and organs of the Civil Society, appointed a People’s Commission of Kenya (PCK). The other was a parliamentary process backed by Moi’s government and allied political parties. This group established a Parliamentary Select Committee.

Parliament was dissolved earlier than expected and not all the proposed reforms were enacted.  Luckily, the Constitution of Kenya Review Act (1997) had already come into force as part of the IPPG package.

The Constitution of Kenya Review Commission (CKRC) was established and 15 commissioners appointed in November 2000. The Commission’s chairman was Yash Pal Ghai, one of our most renowned and experienced constitutionalists.

There was still a huge challenge. Two separate processes, the Ufungamano initiative and the Parliamentary Select Committee, were moving in parallel.

Yash Pal Ghai’s first delicate task was to bring them together, which he did.

The National Constitutional Conference was scheduled to commence on October 28, 2002, at the Bomas of Kenya. The day before, on October 27, 2002, President Moi dissolved Parliament and the process stalled.

Mwai Kibaki won the elections, and his new political outfit, the National Rainbow Coalition - (NARC) promised to deliver a new Constitution within 100 days.

MEDIATION PROCESS

Deep rivalries and differences appeared within NARC, and the constitution-making process was politicised, meaning nothing had happened after 100 days.

The Bomas draft came took almost two more years to be born. It was then taken to Naivasha, where it was politicised and baptised. It became the Wako draft.

The Wako draft was taken to a referendum. No consensus had been reached, and the Kibaki allies had tried to push it down the throat of the opposition.

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