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The essence of a constitution-making process is to amend the clauses existing in the current constitution; add what Kenyans want included or even removing what they have all along lived with not because they really liked it but because they did not have a chance to express their opinion on the issue.

In constitution making, all citizens are expected to give their views. Every person has a right to give his/her own input thus making it a people-driven process. In Kenya, unfortunately, this process has always been hijacked by the government, foreign diplomats and agencies, our politicians and even media; who have taken full advantage to dictate the pace, content and even direction that the process takes. No wonder, the US President Barrack Obama commented on the drafts goodness even before it left CoE to parliament, which may further explain the reasons why it was hard to amend a single clause in parliament.

Media has also been equally guilty from the 2005 process. During this period the then NARC government was not in good terms with the media thus could not get the media backing. I bet we all know the reason why? “You cannot ‘rattle a snake’ and not expect to be bitten”, so it was said. The period prevailing the 2005 referendum there was a raid at the KTN/Standard stations. It was believed that a government-hired ‘hit-men’ perpetuated the act. The media therefore, went full throttle to campaign against the then draft presumably to make a point to the government. This time round it has joined the government to campaign for the draft even before the official campaign period has started. I wonder what its (the media’s) stand would be if the ‘oppressive clauses’; government’s control and regulation on media, would have been entrenched in the current draft constitution. Thank God there will be no such a thing.

The government of Kenya has always taken a position on the constitution-making process. Obviously, it has always been a ‘YES’ stand. This, in my belief, should not be the case. It should always take a neutral stand and let its people decide on the content of the constitution democratically to avoid dividing its citizens along any line. By their direct support or opposition to the draft makes it a government-driven process.

By the way why is it that every time the government takes a stand on the constitution it will also impose it on its citizens in the same direction? Is there anything peculiar about the drafts? Are there untold stories behind the drafts? Why should they always chest-thump claiming it to be a government project? Isn’t this to justify its expenditure on campaigning for the draft?

Indeed, on campaigns the government should either not fund the drafts campaign or it should fund both sides of the campaign.

Referendum is a process by which the citizens express their satisfaction or dissatisfaction with their document or issues. It is not an alternative to a disagreement, as we are made to believe by the Prime Minister Hon Raila Ondinga. He was, in the last few weeks, quoted by the media saying that ‘if there was absolute agreement on all the issues in the draft then there was no need for a referendum’. This is a misconception as I believe that referendum is a process by which citizens own and stamp their authority on the constitution, if the document ever passed. The PM has been vocal on urging Kenyans to be told the truth. Truth telling should start with the key government spokespersons on the proposed constitution.

The truth we want told first is whether abortion is not killing. My understanding of the word killing is depriving ones life. This same life protected under clause 35(1) of the proposed draft. However, the use of the word ‘unless’ brings in partiality in its protection. Abortion, still, to my understanding, also deprives the life of the unborn. Therefore, from my basic understanding abortion and killing are inseparable. That is to say abortion is a polite word for killing the unborn. Bear in mind that the word ‘unless’ in the constitution suggests that the illegality of abortion is not absolute and that it will at one point be allowed. The circumstance does not exonerate conducting abortion. The bible is clear on killing; “Do not kill”, in the 10 Commandments. The Bible does not give exemptions on circumstances of killing. In fact there is no life more important than the other. Life is life may it be that of the born or unborn. By the way how many people die or get life threatening complications after procuring an abortion?

Secondly, on what basis are the Kadhis’ Courts entrenched in the constitution, and if its inclusion is not treating one religion or culture supreme to others? Of course I do not expect the obvious statement he has been riding on for its inclusion that it has been there. Such statement would negate one of the principles of constitution-making; removal of the clauses we want discontinued. Indeed, the proposed draft clause 10 sub-section 3 clearly read that “The State shall treat all religions equally”. Where does the equality start and end? Does entrenching one religion in the constitution while leaving all the others out amount to equal treatment of the religions? If “The State and religion shall be separate” and “There shall be no State religion” (Subsections 1 and 2 respectively of clause 10) then why should the Kadhis’ Courts which is a court for any two professing Islamic faith be in the proposed draft? What separation is there between State and religion? Isn’t Islam a religion and may be being turned into a State religion by being entrenched in the constitution? In my opinion, there should be recognition of any religion in the draft.

Third, I agree we really need land issues addressed in the constitution. My only concern on this is, why should legislation on minimum and maximum acreage be in the constitution whilst we boast of being a capitalistic nation? This brings retrogression or rather negates the capitalistic principles. One should acquire as much properties as possible based on his ability. Why limit land only whereas the number of cars one owns, the number of houses or even the amount of liquid cash that one can have under his name or account are not limited? They are also properties, or aren’t they? In deed, should we then also advocate for the limitation of even education that one can acquire? Isn’t it also intellectual ‘property’? The fact people will be enticed by the clause the lease period on land for foreigner where they cannot lease land for more than 999 years is absurd since upon becoming a citizens, which is very easy if the constitution passes, will not change the 999 years lease. This is because they will no longer be foreigners.

In the ‘Bill of Right’ chapter, every person has a right to demonstrate or go on strike. If demonstration is what I have always experienced it to be, including downing ones tools, then I foresee some national security dangers. I can imagine what would happen in the Kenyan streets if the Kenya Police was to go on strike for just a day. We would chop off each others heads, rob, rape etc in broad day light with impunity. In other words the streets would be in total chaos. Imagine what would be the case if the military or by coincident, the entire security detail in Kenya was to take part in demonstration(s) one particular day.

In fact to tell the truth, there is a risk of restarting the entire process, however minimal the chance may seem. There is a chance, especially after those not aware of the contents of the draft reads it. Once wheat has been separated from wharf and issues of truth and facts separated from those of lies and misrepresentation of facts, once knowledge is separated from ignorance; a chance exists of not getting a constitution. But will this end the constitution-making process? I am sure not it will be the end.

Those castigating the church today of being involved politically condemned the same church of not being involved in guiding their flock during the 2005 referendum or during the 2007 general elections. Whether acting on the previous condemnation or not the truth is that the church is the “pillar of the nation” and can no longer stand aside to be fed whatever perceived ‘filth’ that may be brought their way just because their involvement would be interpreted as being political. For the truth, church is not an institution but the hearts of the convicted by the principles of their Savior. For the truth, everybody has a moral obligation not only to the nation but more so to God; “Every knee shall bow…” By the way where is there no condemnation on those church leaders participating in the ‘YES’ campaign?

In my view the Christians in question, just like any individuals, are first Kenyans and have therefore all the right to participate in all national issues including those of the constitution. In fact they derive their rights directly from the Bible where they are commanded to participate in choosing their leaders through voting and also not to stand and watch evil in the society without condemning it. In the Old Testament, God chose the leadership of the nation through His chosen prophets. His chosen nation was ruled through His commandments, again given through the prophets, among other issues that I may not exhaust in this column.

Secondly, as the believers of Christ, the Bible expressly describes them as the pillars of the nation; the pillars through which the iniquities of the nation are forgiven.

I therefore challenge those advocating for the truth to be told, to tell Kenyans the truth first by not twisting any facts, unless the truth has changed to be lies.


By: Peter Ng’ang’a, Nairobi

ngangasonpg@yahoo.com