The Selection Panel for the Ethics and Anti-Corruption Commission, having reviewed the applications to determine their compliance with the provisions of the Constitution and the Ethics and Anti-Corruption Commission Act, 2011, shortlisted for interview a total of nine (9) candidates for the position of Chairperson as follows:-

1. Bishop Dr. Bonifes E. Adoyo

2. Mumo Matemu, MBS

3. Mary Kimotho M’Mukindia

4. Dr. Arbogast K. Akidiva

5. Dr. Sarah M. Kilemi

6. Erastus Iguna B. N. Rweria, MBS

7. Catherine A. Kola

8. Erick O. Mogeni

9. Job Ogonda

It is notified for general information that the Selection Panel for the Ethics and Anti-Corruption Commission will be conducting interviews for the post of Chairperson of the Ethics and Anti-Corruption Commission on 8th and 9th November, 2011 at the Public Service Commission of Kenya, Commission House, Off Harambee Avenue, next to KICC.

This new constitution is proving to be a great thing. It is grinding slowly but surely. In just a month, the judiciary has been revolutionized, a silent revolution. More drastic changes are emerging daily.

Now, out of the blue, and in accordance with the new calm but deep dawn, KRA is demanding that MPs must be compliant and must therefore pay tax. Not just pay tax for their future salaries, but also for the salaries received since the promulgation of the new constitution.

To no avail, we have taken to the streets and shouted ourselves hoarse that our MPigs must pay tax. The day of reckoning has finally come.

The only two MPs who pay tax voluntarily are Kangundo MP, Johnstone Muthama and Gatanga MP and presidential hopeful Peter Kenneth. The rest have to feel the pain that Kenyans feel of paying tax out of meagre resources and have the money misappropriated by tax non-paying MPigs.

Kenneth Marende, Kenyans are watching you. Dare you go against the grain, this time you will not be forgiven. Tax paying is not a philanthropic task!

It is more than one and a half months since Kenyans overwhelmingly voted for the new constitution. The new set of laws are a landmark step towards the establishment of a truly democratic and just society where probity, accountability, transparency, equality and equity will be the prime movers of our social, cultural, political and economic development.

That a massive 68 per cent of Kenyans endorsed the new constitution is in itself a testimony to the strong desire Kenyans had held for so long for a new dawn of governance that gives dignity and opportunity to every Kenyan regardless of their ethnic, gender, religious, racial or economic backgrounds.

It was the hope of one and all that when President Kibaki promulgated the new constitution, we would all hit the ground and commence the implementation of the new document. However, that does not seem to be the case. While the President and Prime Minister Raila Odinga have shown total commitment to the implementation, it is clear that some of their hardline lieutenants are bent on sabotaging the process.

The hardliners are sending wrong signals to Kenyans and the international community about the government's determination to see the process reach its conclusive end.

After endorsing the new constitution on August 4, Kenyans handed the mantle over to parliament to legislate 49 more provisions to make the new constitution fully operational.

One would therefore expect our parliamentarians to conduct themselves maturely by seizing this opportunity and accomplish for Kenyans the yet-to-be cleared path in the implementation of the new constitution.

Once Parliament re-opens in October, The MPs should debate and enact relevant Bills that will guide us in the new constitutional framework. Hurling accusations at each over the Bills to be enacted does not help Kenyans in any way. Take the brouhaha about the Provincial Administration for example.

In submitting their views to the review body, Kenyans were very clear that they were not comfortable with the widespread abuse of office by chiefs, DO's, DC's and PC's. They however did not call for the scrapping of the system.

In their wisdom, members of the Committee of Experts recommended that the Provincial Administration be restructured to fit into the devolved system of government. The restructuring process is to come via legislation by parliament and that is as it should be.

Why are the MPs, including senior cabinet ministers, now taking us in circles over this issue? The CoE never called for the scrapping or abolishing of the Provincial Administration. And that is the truth as we speak now.

Does restructuring mean abolishment?

There are very influential forces in this county who are ready to do everything to frustrate the implementation of the new constitution. Those forces have pawns and decoys in Parliament.
Earlier in the year, we saw a substantial number of MPs, including Cabinet ministers, who overwhelmingly voted for the draft constitution in Parliament later asking Kenyans to vote against it during the referendum.

Today, we are witnessing politicians who over the years have been posing as reformers taking the front seat in sabotaging the implementation of the new constitution they have been purporting to advocate for.

Those calling for the scrapping of the Provincial Administration are not offering any solutions as regards filling up the administrative and security loopholes to be created by such a move.
Provincial administrators are part of the national security system. Thus, whatever constitutional decisions we come up with, must not create a security gap that would later be exploited by hate mongers to cause chaos.

President Kibaki and the Prime Minister Raila should convince their troops to read and act from the same script.

The era of opposition for the sake of it is long gone. The new constitution should enable us to start on a clean slate as far as governance is concerned.

We however need to begin by changing our mindsets from the petty, parochial, ethnic and tribal approaches that have gripped and dragged us back for many years.

Were we to change our mindset, we shall find out that it is completely unhelpful to keep on engaging the public on useless subjects at funerals, press conferences and public rallies instead of encouraging them to tend their fields, feed their livestock, expand fishponds, take their children to school, impart religious morals into our youth, refuse to give and take bribes, invest in real estate, industries, transport, sports and education.

Our leaders must start investing in truth and honesty. As president Barack Obama once said, we must choose to live on the right side of history. Time has come for all of us to return to reason. Let each one of us play our part. Parliamentarians should stop confusing Kenyans. We should all stop living in the past. We must match forward, with our eyes on the ball - forever.

The author is the national chairman of the Kenya Football Federation

In the several decades journey for the New Constitution, intense debate on what to do with the Provincial Administration has always taken centre stage.

Amongst the reasons for that debate is the draconian use to which the Imperial Presidency under the old constitution put the Provincial Administration from the assistant chief to the chief, the DO, DC, PC, to the OP and the Presidency. The oppression of the people, denial of basic freedoms in the Bill of Rights, including social gatherings, was only possible through the Provincial Administration.

Memories are still fresh when even a visit by in-laws or the slaughter of a goat needed a permit from the chief, who was also required to ensure no criticism of the government or the president took place at any such gatherings. The Provincial Administration was relied upon by the imperial Presidency to rig elections so as to weed out government critics.

The 1988 mlolongo elections where in many cases the shorter queues won is a memorable reminder. The history and role of the Provincial Administration is thus far from positive. The root cause however was the imperial Presidency not the Provincial Administration per se.

It is ironical that this all powerful institution of the Provincial Administration was never anchored in the old constitution. The new constitution for better or for worse anchors the Provincial Administration in the constitution for the first time in the constitutional history of Kenya.

Section 17 of the Sixth Schedule (all the schedules are part and parcel of the constitution) provides: " 17. Within five years after the effective date, the national government shall restructure the system of administration commonly known as the provincial administration to accord with and respect the system of devolved government established under this constitution."

The Sixth Schedule is in turn based on Article 262 of the constitution, which provides:
"The transitional and consequential provisions set out in the Sixth Schedule shall take effect on the effective date."

On a correct interpretation of Article 262 and Section 17 of the Sixth Schedule, abolition of the Provincial Administration now would require an amendment to the constitution. The institution of the Provincial Administration is firmly anchored in the constitution of the Republic of Kenya.

What Section 17 of the Sixth Schedule requires is the restructuring of the Provincial Administration to accord with and respect the system of Devolved Government established under the new constitution. "Accord with and respect", is a powerful caveat.

Amongst the objects of devolution set out in Article 174 are:

(1) to give powers of self-governance to the people and enhance participation of the people in the exercise of the powers of the State and in making decisions affecting them;

(2) to recognise the right of communities to manage their own affairs and to further their development; and

(3) to facilitate the decentralisation of State Organs, their functions and services, from the Capital of Kenya.

Accordingly, any restructuring the effect of which is to dilute n any way these objects of devolution in letter or spirit will be unconstitutional.

Further, Section 5 of the Sixth Schedule needs to be taken into account. The Commission for the Implementation of the Constitution is the one mandated in sub-section 6(a) to monitor, facilitate and oversee the development of Legislation and Administrative Procedures required to implement the constitution and (b) co-ordinate with the Attorney General and the Kenya Law Reform Commission in preparing for tabling in Parliament the Legislation required to implement the constitution.

Since the new constitution does away with Provinces and makes the 47 Counties sacrosanct, creating a "cluster" of counties may very well run counter to the objects of devolution. The restructuring will however need to accommodate the presence of the National Government at the County Levels and below.

The counties themselves are required in Article 176(2) to decentralize their functions and provision of services to the extent that it is efficient and practicable to do so.

It is in the interests of the counties and the National Government to keep track of events so that the National Government is aware of the goings-on at the County Level and vice versa.

The Challenge is to get the balance right between the two systems of government, National and County which must co-exist for the benefit of all the people of Kenya, social and economic.

The writer is a senior counsel.

Expectedly, powerful status-quo forces in government are desperately trying to subvert the new constitution under the pretext of establishing administrative structures to "coordinate and facilitate" government functions in the counties before those devolved structures are even established.

They are attempting an impossible task: the premature and illegitimate resurrection of the Provincial Administration before their official death and burial.

Ironically, coordination and supervision of the execution of all government functions is a constitutional preserve - at least for now - of the PM who has never used the Provincial Administration to execute his functions. Moreover, the "reasons" those at the OP have expressed as the "basis" for their love for the Provincial Administration are the very reasons Kenyans have overwhelmingly voted to abolish them; to stop them from being used by the imperial presidency as instruments of oppression.

Devolution is a governance system that decentralises power, resources and services from the centre to the grassroots. It will allow the people to make decisions on matters that affect their lives. The counties will elect their governments. There will be County Assemblies where laws will be made.

The national government will have no authority to coordinate and supervise local matters for the counties. To permit that would mean we transform devolution into "delegation". That will not happen.

The Provincial Administration is an ad hoc administrative department in the Office of the President. It's under the Ministry of Internal Security and Provincial Administration. It was never provided for in the old Constitution and has only been retained for five years for "restructuring," which, frankly, is just a nice way of saying "dissolution".

For more than 50 years, the colonial and neo-colonial governments used this corrupt instrument for control, exploitation and manipulation as well as manipulation and rigging of elections, suppression of dissent and spying for the imperial presidency.

Senior officials from the OP have said they "are in the process of restructuring" this colonial relic. If allowed, it would be tantamount to permitting the violation of the Constitution and the usurpation of powers of the Implementation Commission, which, has the exclusive man-date to monitor, coordinate, prepare and present legislation and other mechanisms of ensuring the letter and spirit of the Constitution is respected.

Some power mandarins have said, "we can't wait five years to restructure the 'Provincial Administration; restructuring will be completed in a maximum period of six months. The national government must coordinate its activities all over the country." That's mystifying. The implementation of the Constitution and the coordination of government functions must be done by institutions, organs and agents recognised by law. Presently coordination is the purview of the Office of the PM while most aspects of implementation are reserved for the CIC.

No one can "appoint" anyone to superintend for the President, no matter how imperial, to the yet-to-be-operationalised counties. Purporting to "cluster" counties or the disbanded districts in administrative units without legal authority is utter contempt and disregard of clear constitutional provisions.

The Constitution transforms governance by creating, entrenching and enhancing transparency, efficiency and fairness in public affairs. It also eradicates the imperial presidency. Kenyans were determined to use the new charter to promote democracy.

Their aim was not just to transform the laws; they wanted to create new institutions and leadership responsive to the public interests.

To achieve those goals, it specifies that at the level of the executive, consultations between the President and the PM must occur for all decisions, appointments and nominations. The legislature has the exclusive jurisdiction to vet those nominations. The yet-to-be-established Supreme Court has the exclusive mandate to resolve disputes and questions arising from the new Constitution.

The implementation of the constitution is supposed to occur in a consultative, fair, inclusive, and transparent manner. The Implementation Commission will monitor, facilitate and oversee the development of legislation and administrative procedures required to implement the Constitution and to work with each constitutional commission to ensure that the letter and spirit of this Constitution is respected.

On August 6, Kenyans created a constitutional democracy where ultimate power and authority vests on them. Government only exercises power and authority donated by the people. Therefore, if the executive does anything that contravenes or undermines the authority of the public, the decision or act becomes illegitimate and void.

The writer is the PM's adviser on coalition affairs. The views expressed here are his own.

Caroline Mutoko, KISS FM breakfast show presenter has written an article on www.frankierants.com here relating to how the media handled the comments made by NO leaders after the Uhuru park grenade attack which has now left 6 dead and tens injured. She has also commented on the "lies" being spread by the NO campaigners.

It is all good what Caroline has said. BUT something is not adding up from Caroline's angle. I listened to her KISS show in the morning. She spent most of the morning condemning some of the comments made by NO church leaders last night after the attack especially so called Apostle Nga'ng'a of Neno evangelism who accused the YES team as the ones behind the attack and went ahead to curse whoever was behind the attack. This infuriated Caroline and she termed it as the height of incitement in her breakfast show and called upon the police to arrest the pastor. More sad is that KISS aired callers who turned the show into a NO bashing show almost to the extent of justifying the grenade attack.

Caroline was more angered by the claims made by the NO team than the fact that someone had the audacity to detonate 3 grenades in the midst of a Kenyan gathering. To me, the attack is so wrong, evil and diabolic and should be condemned in the strongest terms possible. No one should be bombed in Kenya! For whatever reasons. Whether they are mad, liars, rumour mongers, thieves or saints. Even the serial killer is enjoying police protection and has not been submitted to a firing squad.

This line of thinking is unfortunately being propagated even on the Internet. Justifying statements like "why did they advertise for a prayer rally and turn it into a NO rally?" Or why did they bring kids to a political rally? Or why did it end late in the night? Or why is the church spreading lies and propaganda about the new constitution? Or why is the church hating and inciting the muslims in regard to Kadhi courts?

No one should be bombed in Kenya - For whatever reasons! That should have been the bottom line and KISS FM presenters should have spent more time in their shows condemning the grenade attack if they are really passionate about Kenya. Caroline has the right to condemn any hate speech and inciteful statements but this morning, the condemnation of the attack itself did not come out strongly enough.

As for the Kenyan media, it is now clear that they are not as objective and professional and just like the rest of Kenyans, they also learnt no lessons from the 2007/8 post election violence, how sad! Some of these media houses in their love for reforms, YES and a new constitution by August by all means has turned their anger, insults, hate and frustration on the NO team leaders especially the church leaders.

Early in the year, the media owners/managers met and resolved to give a black out to any forces against the new constitution. This resolve had the church leaders struggle to get attention on the issues they felt were contentious and unacceptable to them and needed to be ironed out before a national referendum.

The church leaders to their advantage had the pulpit as a campaign platform every Sunday. Soon their voice could not be ignored. Unfortunately, by the time the church had caused enough commotion to attract attention, the referendum train had taken off.

To the disadvantage of the church leaders in the NO team, the designers of the referendum train saw no need to design a braking system, like what a good engineer would do. That however has not weakened the determination of the church leaders to bring down the draft constitution come August 4th. Coupled with the disorganized and biased civic education by COE and the arrogance of the YES team, this has confused many media houses who have thrown caution to the wind.

I digress. Caroline has access to media moguls in Kenya and should direct her media anger to akina Linus Gitahi, Wachira Waruru, Rose Kimotho, Jeff Koinange and Paul Melly of KTN. She has their ears. Kenyans believe she is aggressive enough to get the attention of these media owners and managers and have the TV and radio stations behave so as not to repeat the mistakes of 2007/8. If she can't take such a step, she is just like the rest of us who are listening, covering and airing comments made by every mad man in a suit.

Raila Odinga on Uhuru Park Blasts:

According to Citizen Sunday Live the Uhuru Park NO rally blast has claimed 3 lives and left 79 hospitalized at Kenyatta National Hospital and Nairobi Hospital. The NO Rally was led by various church leaders and MP and minister for higher education William Ruto. The rally was attended by thousands of faithfuls who have vowed to oppose the passing of the new constitution citing contentious issues like Kadhi Courts, Abortion and international law adoption clauses.

As the rally was ending in the evening, two blasts went off. The blasts are said to have been caused by grenades or other explosive devices that went off just near the front row where the audience was gathered. The front row is usually packed as it is nearer to the main dais. At the time of the blast a number of faithfuls had stepped forward for prayers and a number had already started streaming out of the rally. A stampede followed that added the number of injuries. The injured were rushed to Kenyatta National hospital.

The church leaders blamed the proponents of YES campaign as the ones behind the blasts. The NO campaign has been gaining ground in the past weeks and today's rally was a show of numbers and might by the church-led NO campaign.

The blast brings to the fore the issues of insecurity in Kenya, religious intolerance and political violence. It shows how fragile Kenya is irregardless of the post election violence that rocked the country after the disputed 2007 election. The referendum campaigns are bringing out pent up emotions in the Kenya populace that shows that Kenya as a country is still not far from the precipice that it slid into in 2008 despite the smokescreen that the grand coalition government is.

This comes 3 days after American vice president, Joe Biden, visit to Kenya. Biden pushed for the passage of the constitution in order for Kenya to enjoy profitable relationship with America and investment funding by Americans. It also comes after it was reported last week in the daily papers that USA president Barack Obama has warned NO proponents of American sanctions for being anti-reformists.

The NO campaign by the Kenyan clergy on the issue of Kadhi courts inclusion in the new constitution has angered the Muslim population. The church leaders cite such inclusion as discriminatory and an elevation of one religion by the state over other religions.

This is the second security incident this year in Nairobi, the capital city of Kenya. In January this year, Nairobi was the scene of demonstrations organized to push the government to release radical Jamaican Islamic preacher Abdulla al-Faisal. Scores were injured and several people died. A General Service Unit police officer was shot and injured by demonstrators who were armed. Demonstrators shouted slogans and donned flags associated with contraversial Somali Islamist al-shabaab militia.

This is a letter to Members of Parliament. Greetings and a good Sunday! I write to you for one reason: You must stop the referendum. You must review the law that created the ‘‘rushed’’ reforms. This is our last chance at peace; maybe our last chance at a negotiated constitution. I am compelled by three considerations.

First, I will quote from a book about the ‘‘fall’’ of Lebanon. It is a ‘‘cookbook’’ on how to destroy nations. The book is entitled The Black Swan: The Impact of the Highly Improbable. And the author is Nassim Nicholas Taleb. Using history, he shows how civilisations and nations are extinguished. All you need is a moment of national blindness and a passion for an idea. Passion and blindness equal destruction. Then destruction acquires a life of its own. What started like a silly joke begins to burn and can burn for years to come. And this is what happened in Lebanon.

The adults told Mr Taleb that the war was “... going to end in a matter of days”. They therefore waited in hotel rooms in Cyprus, Greece and France for the war to end ‘‘tomorrow’’. It lasted 17 years. The same happened to Cuba. During the 1960s, the Cuban refugees in Miami lived with suitcases still half packed. They believed they would return in a ‘‘matter of days’’. They are still in Miami 50 years after the Castro revolution.

Mr Taleb’s point therefore is this: War is unpredictable. Even war that has ‘‘ended’’ can cook from the underground for years. And this is why I write to you as MPs.

The Peace Accord did not end our war. It was a ceasefire document. Instead of burying our differences dead, it buried them alive. Now they are boiling from the underground, simmering in the dark. And as they boil, we are in a state of national blindness. We are in a spell. But what is worse: We are both passionate and blind. This is why the referendum has generated nothing but heat. Only 10 per cent understand the constitution according to the polls.

The others have not read it; do not understand it, or are indifferent. They are passionate about it, but blind. If Mr Taleb is right, this is a recipe for war. I write to you therefore to ask a question: What is the point of having a new constitution and dividing the country? We are still at war. And the experiments in this draft can only add fuel to the fire.

Two, our country is invaded. Unofficially, we are now a Protectorate of America; an informal colony of President Obama. From Kofi Annan to Moreno-Ocampo; the visits by Hilary Clinton to Joe Biden, the trend is now clear. This is an army of occupation. And its mission is what Tanzanians would call ‘‘Ukoloni mamboleo’’ (neo-colonialism). You must therefore tell ‘‘cousin Obama’’ the following: Back off. His father was one of us. And as the ‘Nation of his Father’, we are a proud people. Very proud. You patronise us, we get violent. This is why the Biden trip was a disaster. We resisted the man, his polemics and his goodies. We will not pass the constitution to get American money. Not worth it! We will do it for our children and their children whether ‘‘cousin Obama’’ will be in power or not!

In sum, you must liberate us from this foreign naiveté. And you must do so by first asking the following: What is their interest in this constitution? What are they sneaking backdoors? These questions must be asked with two considerations in mind. The first refers to Article 2(6) of the draft. It translates all International Treaties we have signed into local law. This is a clever invasion without sending Mr Joe Biden. The second has to do with the rushed process of passing this draft. Why the rush? Remember that the ‘‘rushed reforms’’ came with Mr Annan. All his reforms, from the Waki List to the implementation of this draft, have been rushed. Why? You must stop this.

My last point regards the errors in the draft constitution. Some people have identified 93 errors, I have identified 101 errors. This makes the draft illegitimate by any standards. If it passes, these errors cannot be corrected administratively by the Attorney-General. In fact, it would be illegal for him to do so. To correct them, you will have to institute a process of minimum constitutional reforms. In one of the errors (Article 20(3)(b), you will need a referendum because it is in the Bill of Rights. My question to you therefore is this: why go on with a process that is faulty? Why give us a half-baked constitution and constipate us politically? Some of you purport to speak for Kenyans. And you have told us that it has taken 20 to 25 years to do this review process. But one university student told me that he is 26 years old.

He further told me that 65 per cent of the country is 25 years and below, while 73 per cent is below the age of 30. His observation therefore was this: If 65 pc of the country is below 25 years, those making the constitution for 25 years must be in the minority. In fact, he called them political dinosaurs. Worse still, if 73 pc of the country is below 30, none of them has been involved in this ‘‘romantic’’ struggle for a new constitution. This is, therefore, a struggle by dinosaurs, between dinosaurs, to produce a dinosaur constitution.

Back to the author from Lebanon, the country went to war. We did not resolve the reasons why. Now the war has gone underground. On the surface, the country has a passion for the constitution. But this passion is blind. To build an experimental constitution on a fragile peace is to invite war. You must therefore give us leadership by stopping the referendum. The principals will not do it. They are spell bound.

Only you can review the law that created these ‘‘rushed reforms’’. And if you do it, you will open up new avenues for dialogue and healing. But can you? My challenge goes to the cowardly GEMA MPs. You are “Yes” in the day, “No” in the night. This is your chance to be counted!

Mutahi Ngunyi is a political scientist with The Consulting House, a policy and security think-tank for the Great Lakes region, West and Southern Africa. Mutahi@myself.com

In my school days, the marks I scored in a class test or national examination were very important to me. Our teachers then could grade us in two ways; either mark our results out of ten or a hundred depending on the number of questions. Alternatively, the teacher would convert the scores into percentages.

In this arrangement, the person who consistently scored between 50% and 60% was a good and average student with nothing to write home about. Those that scored between 70% and 80% were considered promising and were likely to go far in their academic pursuits. However, those rare ones that scored between 85% and 100% were the darlings of hard working teachers and were guaranteed places either in high school or university, depending on the national examination they were sitting.

Conversely, those that were not intellectually endowed and constantly fell between 0% and 30% in their score sheets were considered unable to proceed beyond that segment of education system. They were encouraged to start considering other vocations such as subsistence farming, woodwork, masonry, tailoring or metal work.

The figures that have been coming out of opinion polls regarding the impending referendum have been following the same patterns we were used to in school. In my village, we had
two boys and one girl that always came last in our class. They always scored the lowest marks, sometimes 0% in all subjects but they soldiered on until the final exams weeded them out.

Of late the Green campaign team has been consistent, scoring above 50% but hardly soaring to the 70% mark. On the other hand, over the last three opinion polls, it was only in the last Synovate results that the Red corner marginally increased its ratings by a humble 3% to hit the 20% mark. This marginal gain for the Reds has also seen the Greens steadily decline from an all-time high of 64% to 57%. If this decline continues, the possibility of the referendum results being too close to call is real.

What this scenario brings to mind is the ugly memory of 2007 when pollsters predicted that the elections would be too close to call. And just like in 2007, the usual suspects have started claiming that the Green corner is planning to rig the referendum, a claim which if they persist with will most likely pollute the political atmosphere with the possibility of losers pouring out into the streets to riot.

So far this poor show by the Reds should be a cause for concern among the clergy hell-bent on denying Kenyans a new constitution.

Right now they may delude themselves that all the polls conducted by different firms have been doctored in favour of the Greens.

However, those were the same messages we kept hearing from our presidential candidates, some of them top clergy in 2007. They never changed the results.

Before these campaigns started, some leading clergy were thumbing their chests that they would mobilise 20 million Christians to scuttle the new constitution.

At that time I argued there are no 20 million Christian voters registered anywhere in Kenya to derail this process. And as it turned out all the voters that the IIEC could manage to register in 50 days were 14 million that has now gone down to 12 million after the vetting of the registers.

This figure is 8 million short of the Christian magic number. What is even more significant is that this 12 million number includes Christians, Muslims, Buddhists, Hindus, Hare Krishna, animists, traditional healers and people of no known faith.

If one looks at the Christian megaphones shouting themselves hoarse, the loudest of them all are the usual suspects that deafen our eardrums at every corner of the city and on our TV screens.

Their congregations look impressive indeed with all manner of miracles being performed. It will remain to be seen if indeed these miracles will turn the tables and deny Kenyans their hard earned constitution come August 4.

And this time, let my Christian clergy brothers and sisters not blame the media or even cash for losing the vote because they decided a long time ago to use our tithes for their campaigns.

Three media houses, two of them very influential have subtly thrown their weight behind the Red corner with one consistently conducting polls every night at prime time in which the Reds are always winning.

Another equally popular TV station is blatantly championing the Red cause because its owners are in the Red corner. The smaller local language radio station has not even bothered to hide its preference for the No team.

Okungu is a media consultant.

Last week I was labelled an anti-reformist for saying a fat “No” to the draft law.

Allow me to put the record straight. Without a doubt, I am an anti-reformist. No apologies, no guess work, just anti-reforms. Besides, being anti-reforms is not a disease. And if it is, I am happily infected. I could be dead wrong on this.

But if I am, I do not choose to be right.

What I crave is “... change I can believe in”. Not change, because it is change. In fact, the change I see in this draft is best described by George Orwell in his fable The Animal Farm.

He talks of a Sugarcandy Mountain; the one we will get if we vote “Yes”. It is a place full of milk, honey and candy. A place where true reforms will happen.

And this is what James, a waiter at Village Market, craves for. He told me he is voting for reforms. After the draft, he sees himself going into business, getting out of poverty and growing fat. He believes that the Sugarcandy Mountain is coming.

But if you read The Animal Farm properly, this mountain was a lie. It never came; it never was. The “... more things changed, the more they remained the same”. And this is the shock we will experience on August 20 if we pass this law.

There is another thing. They say that the current constitution is bad. And if you vote “No”, you are voting for it. Both the assertions are right.

Yes, the current constitution is bad. And yes, I am voting “No” and I am voting for the current constitution.

Like my ‘‘anti-reformist’’ stand, this is not a disease; it is a choice. Between the current and the new constitution, I feel safer with the current.

It is not perfect. But the new one is not perfect either. If the bad things will be removed from the new one later, why can’t the good things be put in the current one later? It amounts to the same thing.

But this is not why I am voting for the current constitution. My vote is “No” because our choices are two. This referendum is a vote between change on the one hand, and stability on the other.

“Yes” is for Change; “No” is for stability. My choice is for stability. If the country is currently stable, why unsettle it with experiments in the name of change? Besides, whose change is this?

In my view, this constitution is a ‘‘Covenant of Darkness’’. Instead of liberating us, it will sink us deeper into national blindness.

This will become obvious only after we have passed it. And I have three reasons for saying so. The first has to do with the political intrigues if it passes.

Currently, the two principals are friends of convenience. If “Yes” wins, their true colours will show. Focus here must be on Mr Raila Odinga.

If “Yes” wins, all the credit will go to him. He will be our new hero. He must, therefore, consolidate support and ascend to the presidency in the shortest time possible.

He must do this before the ‘KKK’ regroups and regiments against him. And his best bet will be a snap election in November this year or thereabouts.

But is this possible? The new draft renegotiated the Peace Accord. While the Accord does not anticipate an election should a coalition partner pull out, the new draft does.

Mr Odinga can pull out in September after a ‘‘make shift’’ crisis and force an election in 60 days. This will be made even easier if The Hague suspects are ‘‘collected’’ around the same time. Between this razzmatazz and the stable status quo, which is worse?

The second aspect has to do with The Hague. And this point must worry the president.

Article 143 provides immunity to the president against any prosecutions. By extension, he is above the law.

However, 143(4) states that “... the immunity of the president ... shall not extend to a crime for which the president may be prosecuted under any treaty to which Kenya is party ...”

What this means is the following: Mr Ocampo can go for the president if the draft passes. But is this possible?

He told us that his focus will be on the Eldoret and Naivasha killings. And he further said that he will not be looking for the foot soldiers only.

The Waki commission further told us that the Naivasha killings were planned at top level. Is it possible that the president is targeted by ICC?

That this Article is carefully calibrated to fix him? What is the point of taking a load full of ‘‘earthlings’’ and ministers to The Hague? Is this all Mr Ocampo is looking for? Will he teach the world anything with this?

I doubt it. My hunch is that he is coming for big fish. And lifting of presidential immunity is the strongest signal yet.

The third aspect regards the implementation of the draft if it passes. And the year of concern is 2012. This is when we will implement it to the full.

The question to ask then is this: If we are afraid of 2012, will this draft provide a peaceful election? And the answer to this is a resounding “No”. Apart from its playful experiments, it has entrenched all the reasons why we fought.

With respect to presidential elections, it favours majority tribes. It means that the dominant tribes will dictate who becomes president under the 50-plus-one rule. This is one reason why we fought.

And as they do so, the majimbo elections will be taking place. The problem with majimbo is not the system, but the ethnic acrimony it breeds.

If people disagree on the presidential candidate, the tempers will be unleashed at the level of majimbo. And this is why I am voting no; why I stand to be counted as an ‘‘anti-reformist’’.

Now a word to the churches over the opinion poll results. My Sunday school teacher used to tell us this: ‘‘God is too slow, but He is never late!” You will catch up.

mutahi@myself.com

The man who inserted ‘‘things’’ in our draft constitution was inspired. Call him a criminal; call him a saint. The man is a patriot. Seriously!

Because we refused to negotiate, we invited madness. And madness happens when “... the relationship between a nation and the truth is disturbed”.

In my view, therefore, the ‘‘mad patriot’’ knows something we do not know. He knows a truth; a disturbing truth. But he is powerless.

However, he is a dare devil, a frustrated one at that. What is more: He is not acting alone. He speaks for an enterprise. A dark enterprise that preaches “Yes” at Uhuru Park, and “No” in the dark. I have a hypothesis regarding its owners.

In posing this hypothesis, I plead ignorance. What I want is a public interpretation of three things. One, we have a government. And this government has two principals.

Is it possible for a constitution to be changed without their knowledge? Or maybe they were asleep. And when they came to brief them on this impossible scheme, they were dozing. Absolutely not.

My hypothesis is this: the government is behind this insertion. This might sound cantankerous, but hear me out. Is it possible for NSIS or the Attorney-General to change the draft without consulting higher authorities? Zero. What about the ministers and permanent secretaries mentioned in the media? Did they do it without reference to their superiors? Zero.

Logically, we must conclude the following: Highly placed people are involved in this sabotage. Hypothetically, they must be “No!” And this insertion was the best way to deliver the “No” vote.

However, I could be wrong. Our leaders could be genuine grandfather-type. Trusting, sleepy and woolly. And while they slept, others went behind their backs and changed the constitution.

If this is true, I am dead worried. While they slept, we do not know what else was changed. Similarly, if they are not alert, who is in charge? Some ‘‘mad patriot’’, the Nairobi City Council or who? Can they take us through the referendum competently?

If the authorities could not stop an obvious insertion, how will they deal with the referendum ‘‘dark forces’’?

In my view, they are either incompetent or an evil genius. I am more inclined to believe the ‘‘genius’’ part. And that this is being done with succession in mind.

And now the second thing that needs your interpretation. For the first time in our politics, the security forces are part of public discourse. In the past, they were a ‘‘sacred cow’’ regulated by “disciplinary law”.

Now we have inserted them in our constitution at Article 24(5). During the parliamentary debate on this article, Mr Mutula Kilonzo told Parliament (something to the effect that) the military chiefs were uncomfortable with the article.

This is also the article that was fiddled with by an invisible hand this week at 24(1). And the problem with it is that every Kenyan is given the right to join a union and go on strike.

However, this right is taken away from the Defence Forces and the police. But the process of taking it away is not guaranteed.

The article says that the rights ‘‘may’’ be taken away through an Act of Parliament. It does not say that the rights ‘‘shall’’ be taken away.

Similarly, it does not say when.

Come August, our soldiers will have a constitutional right to demonstrate. This right will continue until Parliament takes it away, whenever that is.

And this anomaly is what the illegal insertion was trying to stop. The ‘‘mad patriot’’ was arresting a probable military unrest. The message here was therefore this: If you cannot fix the constitutional problems politically, they will be fixed through other means. Crime is one way.

The other is the politicisation of the military. To do so is to invite them into politics. Imagine a ‘‘union of generals’’ walking on the streets shouting ‘‘haki yetu!’’ Not clever.

My hypothesis therefore is this. The Defence Forces are uneasy about this development. By inserting the illegal phrases in the draft, someone could have been warning us of an impending danger.

And if I am wrong, why was the discussion on this issue expunged from the Hansard after the amendment was debated in Parliament? Why the sensitivity around Defence Forces? I have no idea. Kindly interpret.

The third thing regards the Peace Accord. The Sixth Schedule of the draft has a mischievous suggestion. If the coalition is dissolved, it suggests that an election is probable if not necessary. This was rejected when the Accord was signed.

But why re-introduce it in the draft? Should we anticipate a snap election in December following an ODM pullout?

When you think about it, this is not improbable. With a new constitution, a voter’s register and six heavy-weights taken away by Moreno-Ocampo, a snap election would benefit Mr Odinga.

This would be a clever ‘‘civilian coup’’ against the President. And if the President is scheming against Mr Odinga, the latter is ahead.

If the constitution passes, he will owe the President nothing. In fact, he will walk out of government and force the election. But I could also be wrong.

And now a final thought. This is not about the constitution; it is political games. If we vote “Yes”, it will be a vote of ‘‘joy’’. A statement of happiness in the two principals. If we vote “No”, it will be a ‘‘vote-of-no-confidence in the two’’.

Then we can move on. Which one will it be?

Mutahi Ngunyi is a political scientist with The Consulting House, a policy and security think-tank for East, West and Southern Africa. Mutahi@myself.com

Last Friday's Star quoted Chief Justice Evan Gicheru as saying the proposals in the draft constitution (presumably he means CoE's harmonised draft) that all high court and appeal court judges be "sacked" as "nonsense and impossible".

Since the draft says nothing of the kind, one is left to conclude that either the CJ has been misreported, or has not read the text, cannot understand the text, or that he wishes Kenyans to misunderstand what the text says.

The draft is based on generally accepted principles of judicial independence, competence and integrity. It poses no threat to the proper functioning of the judiciary.

The provisions the CJ mentions are transitional, dealing only with current judges. They are designed to get rid of corrupt judges so that the entire judiciary meets the tests of the draft. The proposed procedure meets the highest standards of due process. No judge is "sacked" and has to apply to be reappointed.

Every judge, including the CJ, may retire with full retirement benefits within 60 days of the coming into effect of the constitution. Those who choose to stay will not be sacked but will be vetted by an independent Interim Judicial Service Commission consisting of four retired judges, two from the Commonwealth (one as chair) and two local, and an experienced lawyer or distinguished academic nominated by the Law Society.

The IJSC will not necessarily proceed against all the judges. When it does proceed against a judge, it must respect international principles and standards on judicial independence.

The IJSC would proceed against a judge only after evaluating evidence about the judge's suitability gleaned from a number of prescribed, respectable sources (including pending or concluded criminal cases, any recommendation to prosecute a judge by the AG, KACC or other appropriate authority).

If it does proceed, the judge would go on leave, with full pay, pending trial. A judge would be dismissed only if after appropriate hearings, the IJSC found the judge unsuitable to hold judicial office.

The IJSC will not investigate or try all judges simultaneously, but by seniority. The entire review must be concluded within one year of the new constitution, unless the National Assembly extends the time.

One year is unrealistic, although perhaps sufficient to make preliminary decisions on all the judges. There should also be an obligation to inform judges who would not be charged (to remove their anxiety) — this would have to be confidential, otherwise suspicion would mean that all the other judges would be unable to continue to work.

The CJ is wrong on other points as well. He says that it is "imaginary and poor excuse to paint all judges as corrupt in order to achieve political gains". First, no one has labelled all judges corrupt. Indeed the procedure has been designed to sift the uncorrupt from the corrupt. Secondly, the only political objective I know for this proposal is to enable Kenyans to have an honest and competent judiciary.

He is also wrong when he says that the judiciary can and has set its own house in order. Really? By a CJ in whom the Law Society, some major political parties, and a large section of the public have lost confidence?

There is widespread feeling that the earlier process of vetting in 2003, presided over by the CJ, was deeply flawed. Since then a number of judges have been appointed, under his watch as chair of the Judicial Service Commission, who seem unsuitable (one is now charged with offences related to corruption in his immediate past post).

Improper procedure for some judicial appointments was the reason the former Minister of Justice gave for her resignation. It was partly the perception of lack of integrity on the part of the CJ that plunged the country into unparalleled crisis because people believed this judiciary was inappro-priate to decide on disputed elections.

He implies that only a small number of people believe that there are corrupt judges. The Constitution of Kenya Review Commission received a large number of complaints about wide scale corruption in the judiciary, from extraordinarily diverse groups, including the Law Society, professional bodies, and business organisations.

A panel of eminent Commonwealth judges and jurists in 2001 reported having received allegations "both persistent and consistent" against the judiciary "from highly credible (and diverse) sources", and concluded that "public confidence in the Judiciary has virtually collapsed". The 2003 process was simply not suited, perhaps not intended, to remedy this.

There is indeed a procedure in the current constitution for removal of judges. As the eminent jurists noted, allegations of judicial misconduct have not been taken seriously by those with the constitutional duty to act (and that continues to be case). The scheme in the draft follows the essential principles of this procedure. The proposals are not a denial, but a recognition, of the crucial position of the judiciary in implementing a constitution — and ensuring the rule of law.

Ghai was the chairman of the former Constitution of Kenya Review Commission.