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Honest Brokers
Church leaders have become heavily involved in the process of reviewing Kenya’s constitution, hoping to ensure that the new document will protect the rights of the people rather than the power of the current regime.
By Fredrick Nzwili
A two-year process of reviewing the nation’s constitution has become a major source of concern for the people of Kenya. Ordinary citizens speak of their confusion and discouragement with the process, their feelings that politicians have deceived them. And as political leaders have failed to keep their promises, Church leaders have moved into the discussion.
Discussions of a new constitution have rippled through the Kenyan political system for several years. But the controversy became acute in 1999, with the rise of two separate, parallel groups dedicated to reviewing the constitution and proposing changes. One group, the Parliament Select Committee (PSC), was composed primarily of members of the ruling party, with a few members added from the opposition parties. The other committee, the Ufungamano, or People’s Commission of Kenya (PCK), was formed by religious leaders. This latter group included representatives from the Roman Catholic Church, the National Christian Council of Kenya, the Hindu Council of Kenya, and the Supreme Council of Kenyan Muslims.
The Ufungamano has already made great strides in reviewing the constitutional system, and in fact religious leaders have boldly claimed to exercise primary control over the process of constitutional review. On Christmas Eve 2000, Archbishop Raphael Ndingi Mwana’a Nzeki of Nairobi—the leading representative of the Catholic Church, which in turn is the most prominent religious group in Kenya—bluntly asserted that the Church was now the key player in the battle over constitutional reforms.
In a speech he delivered as the Jubilee year came to a close, Archbishop Ndingi told his people that they should not leave the government to settle the constitutional questions alone. All citizens should play a part in the process, he said. “We cannot say these are problems of the ruling party, or of any other political parties, because they are national problems,” he said. The archbishop also announced that Church leaders would continue to speak out on these national issues, regardless of the political repercussions. As he put it, the Church would be involved “wapende wasipende”—”whether they like it or not.”
Violent response
Archbishop Ndingi’s strong words came in response to a series of incidents that have been widely interpreted as efforts to intimidate the religious leaders involved in the constitutional review. The bold strides taken by Church leaders have been met with full force.
On November 27, an attack on the members of the Ufungamano committee took place in Kisumu, a town about 180 miles west of Nairobi, and left dozens injured and caused extensive property damage. At a meeting held in the local Tumusifu Catholic Center, designed to give local residents a chance to express their views, thugs attacked the committee members and caused a general melee.
Then early in December, there were clashes between Christians and Muslims in Nairobi, culminating in the burning of a Catholic parish church; millions of dollars’ worth of damage was done. Ufungamano leaders charged that the violence had been deliberately staged by opponents of their work, in an effort to cause divisions among the religious groups. Sheik Abdallah Abdi, a Muslim member of the group’s steering committee, said:
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There have always been attempts by the government, and by those opposed to our initiative, to split the religious community and stall the process. But I now tell them that this will not be possible; we are committed to our call.
Government offer rejected
The latest political developments in Nairobi came after the ruling party, the Kenyan African National Union (KANU), quietly approached the Church groups—working through a prominent opposition leader, Raila Odinga—to inquire about the possibility of merging the two constitutional review committees. The unified committee was to be chaired by Professor Pal Yash Ghai, a renowned expert on Kenyan law who is based at the University of Hong Kong. But the Ufungamano group reacted cautiously to the proposal, recalling past occasions when the government had not honored its promises. Two years earlier, similar proposals had foundered when political leaders refused to give Church leaders a substantive role in the review process.
Eventually, on January 4, the Ufungamano leaders rejected the government’s proposal, arguing that it was too vague. In fact, the proposal was made anonymously, one Christian leader pointed out. The Rev. Mutava Musyimi, a Baptist minister and secretary general of the National Christian Council of Kenya, noted: “The merger document was not signed, nor did it have a list of the leaders from the other side.”
Kenya’s President Daniel arap Moi reacted angrily to the religious leaders’ decision, and said that Professor Ghai should have no further dealings with the Ufungamano group. He challenged the Church group to explain whom they represented, and from whom they had been given a mandate to play such an important role in the constitutional review.
Nevertheless, as of January 8, Ghai had not received any official directive to break off contact with the Ufungamano group. On the contrary, the chairman of the government’s review committee had received the president’s approval to consult with the rival Ufungamano team, and continue to explore the possibility of a unified process. In a written statement that was widely indicated as a sign of good will toward the Church leaders, President Moi said: “My government has full confidence in Professor Ghai and he is free to talk to Ufungamano or the parliamentary parties which have stayed out of the parliament’s appointed commission.”
Still, there were clearly some limits on the chairman’s flexibility. In December a leading member of the KANU government team had questioned Ghai’s efforts to mediate an agreement between the religious leaders and the elected politicians. “We brought Ghai here to work, not to bridge divisions,” said Sheriff Nassir, a minister in the president’s office. “Let him be informed that he is not heading anywhere.”
The will of the people
Despite the latest breakdown in negotiations, most clergymen in Kenya are holding on to the hope that the government will eventually bend to the demands of the religious leaders—which, they say, coincide with the desires of the Kenyan people. The head of the Anglican Church in Kenya, Archbishop David Gitari, said:
We have seen this government succumb to the wishes of the people before. There was the issue of multi-party politics, the constitutional review process itself, which the ruling party had vowed would not happen. Even in this case, we shall fight back through prayer, for with God we are more than conquerors.
According to the Anglican archbishop, the Kenyan people want to regain control of their country, and to live in peace. They have grown tired of the political games that have been played in this country for many years now.
Archbishop Gitari argued that a new constitution would already be in place today, if the KANU government had been committed to the effort from the start. “We [the Ufungamano group] have a reason to be suspicious of the ruling party,” he said.
The archbishop went on to say that the critics of the Church leaders’ involvement in the political process were people who resented the Church for condemning the vices and immoralities that are prevalent in Kenyan society. The religious groups have become involved in the constitutional review in order to safeguard the rights of the people, he said.
Archbishop Gitari insisted that every citizen of Kenya has the right to take part in the constitutional review. “It is for the people of Kenya to tell those in power how to rule the country, rather than for the leaders to tell Kenyans,” he said. “We cannot let one person, or one group of people, rock the boat. The politicians’ business is also our business.”
The religious leaders’ demands
The Ufungamano group has listed 16 conditions that must be fulfilled if a merger is to take place between the two review committees. Among the most important conditions are:
This is not merely a theoretical point. President Moi and the leaders of KANU are prepared to undertake only minimal reforms in the constitution; they would prefer a process in which the document is reviewed only “as the need arises.” And the president and his allies are convinced that this review should be done by the parliament alone. Once any other body reviews the constitution, they fear, their power is likely to be curtailed.
The president’s fears are well founded. Leading clergymen in Kenya have frequently indicated their interest in trimming the sweeping powers of the presidency.
“I was not elected to be a ceremonial president,” Moi insists. “They want me to become a rubber-stamp president. I will not allow it. I will not allow the constitutional process to be hijacked.”
A history of broken promises
The struggle to rewrite Kenya’s constitution has been going on for nearly a decade. In 1991, President Moi agreed that the document needed an overhaul and promised that a review would take place after the general elections in 1992. That promise was not kept.
In 1997, under pressure from religious figures and opposition-party leaders, Moi signed the Kenya Constitutional Review Act, and promised to support the inclusive review process for which that Act provided. But on May 22, 1999, the president again broke his promise, announcing that the Act was not workable and the parliament alone would review the constitution.
“The parliament has plenty of experience in constitutional changes,” concedes Professor Kivutha Kibwana, a law professor at the University of Nairobi. “But the changes they put in place continue to serve those who made them.” The review process to date, he says, “has enabled politicians to trample on the rights of the people and enrich themselves.”
Church leaders see their entry into the review process as a way of helping the people in a time of need. “We are spearheading the process as agents of necessity, and we shall ensure that only people with a high degree of moral rectitude review the law of the land,” promises Archbishop John Njue of Embu, the president of the Kenyan Catholic bishops’ conference.
The role of the churches
The rationale behind the clerical involvement in the review process, then, is to counteract corruption: bad government, bad politics, and bad laws. The religious leaders also say that they will demand a constitution that clearly defines, distributes, and limits political power.
The very situation that gave rise to the Ufungamano committee illustrates the clergymen’s argument that Kenya needs an honest broker for the constitutional process. In 1998 the country’s parliament created the Kenya Constitutional Review Commission. The 13 seats on that commission were to be apportioned among the 10 political parties represented in parliament. The ruling KANU party insisted that it must have the largest number of seats. Opponents held out for more representation. Thus the appointment of commissioners degenerated into a bitter battle, which seemed to have produced a stalemate until December 16, 1998, when the religious leaders entered decisively into the process by joining opposition leaders and selecting their own commissioners.
In a pastoral letter issued in September 1999, the Catholic bishops of Kenya spoke of their frustration—and the frustration of the people—with the process of reform:
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The people of Kenya cannot help but feel cheated. We are therefore compelled to state our position in a spirit of solidarity and support for the aspirations of Kenyans who had trusted and who looked forward to the review process as their own, and as the most effective means to end the economic and political woes in this country.
Not just ordinary legislation
Supporters of the Ufungamano group acknowledge that the current constitution, in section 47, gives parliament the power to make changes in the constitution. But they argue that the legislature as it is currently constituted does not fully represent the people. The National Executive Council, a reform-minded independent group, points out that the creation of a constitution is quite different from the enactment of ordinary laws. By giving parliament the power to change the fundamental law of the land, the National Executive Council reasons, the current constitution ignores the fact that parliament itself draws its authority from the constitution, which stipulates that the members of the parliament have powers delegated to them by the people.
“The constitution is perceived by many people as a document which should concern only lawyers and politicians in their struggle for power,” comments Smaking Wanjala, a legal expert at the University of Nairobi. “This perception has been generated by a deliberate government policy to keep members of the public ignorant of the contents of the laws that affect their daily lives,” he charges.
All these disputes can be traced to the fact that the existing Kenyan constitution fails to establish the fundamental principles that underlie and establish the government’s sovereignty—principles to which the political leaders and the ordinary people are permanently committed. Such principles are usually set forth in a preamble to the constitution. The constitution of Uganda, for example, begins with the preamble;
We, the people of Uganda,
- Recalling our history, which has been characterized by political and constitutional instability,
- Recognizing our struggles against tyranny, oppression, and exploitation,
- Committed to building a better future by establishing a socio-economic and political order through a popular and durable constitution based on the principles of unity, peace, equality, democracy, freedom, social justice, and progress, . . .
- The Kenyan constitution, on the other hand, begins: “Kenya shall be a multi-party state, and the public seals of Kenya shall be such devices as are prescribed by or under an act of parliament . . . .”
As the constitutional crisis continues, it is the ordinary citizens who suffer. The goal that a new constitution might be in place before the country’s next general elections remains elusive. However, with the bold entry of the Kenyan religious leaders into the controversy, there is a new confidence that at least the constitution will undergo a realistic review.
Fredrick Nzwili is a free-lance writer based in Nairobi.
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