IRIN interview with secretary of the Constitutional Review Commission

Patrick Lumumba is the Secretary of the Kenya Constitutional Review Commission (KCRC), the body charged with drawing up a revised Kenyan constitution. Presidential approval of the Constitutional Review Act (CRA) in 1998 set the agenda for a thorough review of the constitution, including issues such as electoral reform, the nature of presidential powers, and the country's regional administrative structures. The original KCRC was merged in May 2001 with a parallel constitutional review process - the Ufungamano or People's Commission of Kenya initiative - with Prof Yash Pal Ghai sworn in as chairman of the new KCRC. Under the CRA, the KCRC is mandated to visit every constituency in Kenya to take the views of ordinary Kenyans on proposed constitutional changes. The commissioners are currently in the process of collecting views from the public in different parts of the country, and are scheduled to complete the review before general elections take place in the latter part of 2002. Some observers have expressed doubts, however, that the KCRC will be able to complete its work in time, meaning that there is a possibility that a new constitution will not be ready for the swearing in of a new government later in the year. Under the present constitution, a president can serve only two five-year terms. Therefore, unless this aspect of the constitution is amended, this will be the last term in office of current Kenyan President Daniel arap Moi. IRIN asked Lumumba about recent progress made by the KCRC. QUESTION: It is now more than one year since the Review Commission was established. In your view, what are the biggest challenges your team has faced? ANSWER: This is an exercise that is massive. It is the first time in the history of independent Kenya that we are engaged in a truly people-driven process. One of our principal challenges has entailed rolling out into 70 districts and four additionally created organs [administrative divisions] in Nairobi, making it a total of 74 districts in that sense. It is also the only time in independent Kenya where you have a process involving people in the 210 constituencies for purposes of receiving their views. That has been achieved within a very short time. The other thing is making the people make informed contributions to the process. The Commission has also been a victim of undeserved scepticisms, but we have surmounted the scepticisms, because we have been true to our cause. By and large, we have won the confidence of Kenyans in the process, because the Commission has been independent and open. Q: So what do you make of some detractors’ claims that your work largely depends on presidential goodwill? A: I don’t think so. The 30 million Kenyans out there are vigilant and waiting out there. I can tell you for a fact that since my appointment several months ago, I have never met the president. Q: So why has the chairman of the Commission, Prof Yash Pal Ghai, been alluding to the president’s pronouncements every time he talks about the government’s commitment to the constitutional review process, as if it is the president’s opinion that matters most? A: The president has been saying publicly that there is a desire on the part of the government to see the review process taking place successfully. The fact that the government over which he presides is supporting us by providing funds is ample evidence that both the president and the government support the process. Q: The Commission has come under severe criticisms from various quarters for what have been viewed as shortcomings. How has that affected your work? A: In any political process, criticisms are given. In fact, I will be surprised if we were praised. We ought not to be defensive and hypersensitive. Whenever the Commission has been criticised, we have tried to use that criticism positively to improve our work and performance. As we go on with the process, I expect that we will be criticised even more. Q: It has also been alleged that the Commission has misused funds by awarding huge allowances and perks to the commissioners. Would you care to comment on these allegations? A: Many people say many things about the allowances of the team in this Commission. For example, someone said that the commissioners have already earned one billion Kenya shillings [about US $12 million]. We have never received one billion shillings. That is the total budgetary allocation that we have been given until the month of June this year, and we have never received it. So how can we spend that which we do not have? I take the view that sometimes wisdom lies in silence, and that is why we have decided to be silent about such allegations. All our activities are in the public domain. If anyone wants to have a look at records of our activities, he will come and we will be pleased to provide all the needed information. Q: Apart from collecting the views of Kenyans, the Commission has also embarked on civic education. How is it faring on this? A: The Commission has been involved in civic education in various ways. We conduct uninterrupted radio programmes on national radio and television. Other organisations are also involved in civic education, and we work in partnership with them, and Section 24 of the [Constiutional Review] Act that creates us [the KCRC] states that civic education will go on throughout the process. Q: Kenyans attach a lot of significance to the work you are doing and are very eager to see a new constitution. At what stage is the review process at the moment? A: The review process has covered quite some ground. Today you can say that we are in the districts inducting the constituency committees. We have worked with those who have said they have the capacity to offer civic education. In the next few weeks, hopefully, we will be out there harvesting people’s views at the constituencies. Even before we do that, there are many organised groups that have already given their views to the Commission. We also continue to receive views from Kenyans in the diaspora, and individual Kenyans. I reply to almost 50 letters a day to thank various groups for giving their views to the Commission. Kenyans are interested in this process, and we are not just about to disappoint them. Q: Some Kenyans are worried that parliament has not given the Commission the constitutional protection it requires by passing the Review Act that created the Commission. Are you worried? A: Our view is that the Kenyans’ protection is what we need. Why should 30 million Kenyans fear 210 parliamentarians? The Review Commission is the first one in independent Kenya that has been created by an act of parliament and not appointed under the Commissions of Inquiries Act like other commissions. It is therefore not true that the president can disband this Commission, as has been alleged. It can only be disbanded by the repeal of the Act in parliament, and I don’t think that after spending a quarter of a billion shillings, Kenyans will allow that to happen. Q: Can you unequivocally say whether Kenyans will have a new constitution by September, as originally intended, or in time for this year's general elections? A: We don’t want to say that, because we have gone out publicly and indicated to Kenyans that we are constantly reviewing our work. We recently said that we want to work until the month of March. Then, at that stage, we will tell Kenyans what we have done and what remains to be done. I don’t think that time is an issue, because when you are talking about the life of a country that will exist in eternity, you don’t talk about it as if it is being wound up. Kenya is not being wound up, and we cannot peg an exercise as important as constitutional review to an episodic exercise such as an election that comes once in every five years. Q: There has been talk about adopting the model of the constitution of South Africa. Have you already come up with a model that the new Kenyan constitution is likely to adopt? A: Not at all. It is the views that we receive from Kenyans that will decide the kind of constitution that the Commission will come up with. It will be one that reflects the views of Kenyans. Q: This being an election year in Kenya, do you foresee more problems for the Commission during the election campaigns? A: We don’t want to make a big issue of the elections. What I know is that elections by their very nature evoke high emotions. I can only appeal to Kenyans not to interfere with a process as important as constitutional review during the electioneering process. Q: Political observers have repeatedly pointed out the likelihood of an extension of parliament's life, and have also said there is a possibility that elections could be called before the review process is completed. If they were to materialise, what will be their bearing on the constitutional review process? A: This exercise has a statutory life. The statutes also allow this Commission the extension of its life. I don’t see why we should be worried over that which has not arisen. Q: What about the debate on the succession to President Moi, and on whether Kenya should adopt a federal system of government? A: This Commission has organised debates in the past over various issues to stimulate Kenyans’ participation. Remember, the Commission will be making a proposal that will be submitted to the National Constitutional Conference, a 600-plus-member group that will then arrive at the final constitution by consensus, and the commissioners will merely be ex-officio members [of the KCRC]. If there is no consensus, there will be a referendum. So the work of the Commission is well structured, and the Commission is enormously immunised from manipulations from any side of the political divide. Q: By and large, Kenyans are looking up to your team to come up with a foolproof constitution that will, among other things, clip the hitherto sweeping presidential powers. What are your comments? A: The Commission is also mandated to look into presidential powers, among other things. But whether the presidential powers will be clipped or not will depend on the views of the people. Q: Finally, to ordinary Kenyans, what are the ramifications of going to the polls with the old constitution? A: We have gone to the polls with the old constitution since independence. We have survived as a nation. The choice is theirs. So, there are no new ramifications.