Nairobi Star: David Makali - Feuding Experts Hurting Reforms

Is it true that if you put two lawyers together in a room, you have an argument instantly?

Judging by recent verbal displays in interpreting the law, there is something to be wary of about the Learned Friends we entrust our all with.

They have a knack for turning everything into an abracadabra; a simple door can have several meanings to a lawyer — is it an exit, an entrance, or just an opening? You can argue up to tomorrow.

And so it is not surprising what is going on with the Committee of Experts established to prepare a draft constitution. From a layman's point of view, their task seems so well defined and simple but is it?

They are supposed to examine the previous drafts, isolate the contentious issues, and build consensus through consultation with different (I hate this word) stakeholders. Once they have done so, they can then present a draft constitution for consideration by Parliament in December.

Parliament will mull over it, and if it finds issues, send it back to the Reference Group which will then... I lose you.

Ok, in short, in March we should have a referendum on a constitution that is expected to be so agreeable to the majority and if endorsed by 60 per cent of the registered voters will become our supreme law.

Well if you don't know or like that, go to the nearest police station and notify the OCS of your intended protest. Kenyans are in the habit of waiting until the last day to complain about this and that. Sorry, this time the courts have been stripped of the power to entertain your grievances.

What is disappointing though is the wrangling in the committee.

Last week, Committee member Njoki Ndung'u ventilated her frustrations with the committee's mode of operation in a letter to the chairman Nzamba Kitonga in which she basically said, Stop, something is wrong!

According to Njoki, the committee has not been following the law and some of its meetings are not meeting the threshold set by Parliament - that they must all be on record.

What irritated her is a short notice retreat to Naivasha last week by the committee to write a draft. Well, Njoki has to know that she is fully engaged by this country to write the constitution, so she should be available on call 24-7. But she had other issues, which might need urgent attention.

Key is the complaint that the committee has yet to draw the attention of the public.

True, the constitution is nowhere as exciting as the back-door reappointment of Aaron Ringera or the controversial prosecution of post-election violence perpetrators. But, surely, a constitution we have been trying to write for 25 years should at least elicit some public interest and participation.

Can the Principals ask the country to keep quiet for just a day so we just discuss the constitution?

Secondly, the consultations don't seem to be progressing well. The job of the committee was to present the contentious issues to the public, receive submissions on them, and meet with vested interests — institutions and individuals — to harmonise their views
and bridge their differences.

The consensus would then be written into the draft on the basis of the widest possible acceptance or excluded altogether. Njoki accuses the committee of rushing to write the draft before it has exhausted the consultations, subtly hinting that the committee is prematurely "deciding" for the public what is consensual.

Well, not surprisingly, the protest has found instant amplifiers in the name of evangelical churches calling themselves the Kenya Christian Constitutional Forum. Yawn.

The question is how much consultation is enough? And given that some people, especially evangelicals who are battling for exclusion of the Kadhis' courts from the constitution, will not yield unless their position is accepted, will the committee finish its work in time?

Maybe Njoki is right — the committee has become impatient with some potentates who think the Constitution cannot be written without their views. But is there anyone out there, political or religious, whose views are indispensable?

I can bet that unless we cut off some arguments, we will still be discussing about a draft in March next year and asking for more time. Politicians will happily grant the extension, knowing well it will allow them one more day in office.

David Makali is a media consultant

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