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Constitution of Kenya Review Commission |
By Hon. Raila Odinga,MP,Chairman Of The Parliamentary Select Committee On The Occassion Of Opening of The Constitution Of Kenya Review Commission Workshop On The Interpretation Of Its Mandate in Mombasa.
10-09-2001
I am pleased to have been invited to participate at the opening of the workshop on the interpretation of the Commission's mandate. It is important that the Commission's mandate including Terms of Reference are fully understood by everyone concerned in order to avoid any future misunderstanding.
The making of a new constitution for any country marks an important watershed in its history. It demonstrates the desire of the people of fundamentally change their system of governance. The process gives the people an opportunity to make a fresh start by reviewing their past experiences, identifying the root-causes of their problems, learning lessons from past mistakes and making genuine efforts to provide solutions for their better governance and future development.
The decision to review the constitution has given a challenge to all sections/groups and individuals in Kenya to participate as fully and
freely as possible in the exercise so that the new constitution thereby produced will be truly theirs.
In my view, the mandate of the commission is to consult the people and make proposals for a popular and lasting constitution based on national consensus. The challenge to the commission is to do your work 'without fear or favour' and to use all means at your disposal to encourage people's participation in the exercise.
The challenge to the government is to create an atmosphere of peace, security and freedom necessary for fruitful discussion and debate of all aspects of constitutional issues.
From my experience as the Chairman of the Parliamentary Select Committee on Constitutional Review, I see the following as the Theoretical or Philosophical Bases for your Recommendations:
(a) The new constitutional order should be responsive to Kenya's potentially vulnerable geographical position. The objective is to safeguard our national independence, sovereignty and territorial integrity. The means should include strengthening our nation-state and fostering policies of cooperation, understanding and friendliness at the regional, African and international levels.
(b)The new constitutional order should come to terms with Kenya's multi-
ethnic and cultural diversities. The objective is to promote nation building and national unity while fully respecting our cultural diversities and ethnic identities. One of the means of achieving that is to adopt a form of government that can best responds to the above principle.
(c) The new constitutional order should come to terms with Kenya's past and present and should be sufficiently flexible to meet internal and external challenges and people's aspirations for the future. The aim is to avoid the pitfalls of the past, which have caused much suffering while building on values of the past, which have proved workable and have survived all odds. The present should also be taken into account critically in order to identify both values that are permanent and those, which seem transitory. The aspirations for the future indicate the direction which people want the country to take. They can be responded to by making a constitution that is sufficiently flexible to meet those challenges as they come.
(d)The new constitutional order should be so devised as to enable Government to govern effectively and democratically. The objective is to avoid both anarchy and tyranny. One of the effective remedies is to distribute power and responsibility in such a way that no loopholes are left for agitators to cause anarchy and for dictators to impose their will.
(e) The re should be such a balance of forces in the new constitutional order that no one single social force or group should be able to establish its hegemony to the extent of flouting the established democratic principles. The objective is to eliminate the politics of exclusion, sectarianism and unconstitutionality. To remedy such a situation, there is need to control all social forces within the constitutional order and to put in place institutions that can effectively resolve conflicts fairly and peacefully.
(f)No social force or group should be politically marginalized as evidenced by Kenya's historical experience. The aim is to establish solid foundations of equality, equity and social justice. One of the ways to achieve this is to give clear constitutional support to the rights of women, children, handicapped persons and minorities.
(g)The established institutional frameworks should be capable of creating conditions for peaceful transfer of power. The objective is to entirely eliminate the practice of capturing power through sheer force or other unconstitutional methods. This aim can be partly achieved through the constitutional subordination of the military to civilian authority and the establishment of independent institutions to supervise the transfer of power.
(h)The new constitutional order should ensure that major
Controversial issues are resolved through democratic discussion and where necessary national referenda. The objective is to ensure that controversial issues do not lead to polarization of the nation into hostile camps. One of the ways to achieve this may be through use of national referenda to resolve issues democratically.
(i) The new constitutional order should ensure that Constitutional structures are viable and flexible, coherent and integrated to promote a culture of constitutionalism. The aim is to safeguard the constitutional arrangements as suggested by the people and approved by them or by their elected delegates. The means would include clear procedures for amending the constitution, making the constitution widely known and studied and empowering people to defend it.