The Committee of Experts (CoE) produced its harmonized draft in November, which it revised in December/January after public input, and revised again, taking into account the views of the Public Service Commission (PSC), though by no means accepting all its views. It is that draft that this article considers – and which we are told is about to face two days of onslaught from MPs seeking to propose amendments, for which they require the support of 65 per cent of their members. It is now called ‘The Proposed Constitution’.

That draft is considerably better in many ways on the earlier versions, though some gains have been lost. We should recognise the effort that has gone into this, and the many improvements that have been made in terms of clarity and legal workability.

If Kenya is to get a new constitution, as the people want, exhausted – indeed mystified – as they are by the twists and turns of the process, our expectations must in some ways be lowered. In the end perhaps the most important question is ‘will this be better than the existing constitution?’ In many ways it certainly will be: More recognition of the role and rights of women, rights and inclusion for other marginalised sections of society, clearer commitments to accountability, rule of law, and independence of the judiciary. Separating the government (executive) from parliament may well be a major improvement in governance. Even if there remain many things that could have been done, even on these points, we should not dwell on ‘if only…’

We ought not to forget that what really got the current constitution-making phase off the ground was the National Accord – under international pressure – with the intention of avoiding any repetition of the dreadful events of early 2008. This introduces a new twist to the aspect of the system of government debate. In the 2000–2005 phase, we were concerned with achieving a workable and accountable system of government, which our curious presidential system was not thought to be. Now we need to avoid a system of government where the ‘winner takes all’, not just because this is too much power in one person’s hands, but because we fear that that the ruthlessness that may be shown in striving to be that one person, or to have that one person being ‘our person’ may destroy us.

So, rights and values cannot be allowed to overshadow this question: Is the presidential system proposed less or even more likely to generate this savage competition for office? Whatever checks and balances are there may never get to be used if something worse than 2008 should occur. There is little hope that the system will be changed to something more collegial in parliament.

Other concerns inevitably loom less large. Bringing the government closer to the people, through devolution, is desirable. It could offer greater control to the people, greater responsiveness of government – and even offer alternative arenas for political ambitions and training grounds for new breeds of politician. But the rather weak system, in terms of powers, and their distribution among so many small, and surely weak, units undermines this promise.

There are some other issues that are particularly relevant to concerns about access to justice – an end to impunity and a generally more accountable system. Here I pick out just a few.

With an independent prosecution system (very much to be welcomed), and a more independent judiciary, the third aspect of a fair system of criminal justice is effective representation for the accused. The public defender – responsible for this in a systematic way – figured in all drafts from the Constitution of Kenya Review Commission (CKRC) to the ‘Revised Harmonized Draft’, but has gone. Was it the victim of an obsession with brevity, of hostility to fair trial? In what sense was this ‘controversial’?

It is hard to understand why the anomalous position of the attorney general has been retained: Supposedly the legal advisor to the government, who is to ‘promote, protect and uphold the rule of law and defend the public interest’, yet also member of the Cabinet, and of the Judicial Service Commission which is supposed to be independent.

The work of an ombudsman may fall within the mandate of the human rights commission (since the CoE restored the right to fair administrative action excised by the PSC). But much better would have been a clear commitment to such an office, perhaps independent of the commission as the revised harmonized draft proposed. Let us hope the MPs don’t think that a parliamentary committee is an adequate substitute for a properly funded and functioning ombudsman.

There are worries about the land provisions – will they really achieve justice in this area?

Finally – rumour has it that some MPs hope to seize for parliament the final decision, removing the requirement of a referendum. They can only do this by amending the constitution, removing Article 47A – for which they need the same 65 per cent majority that they are apparently having problems mustering to propose changes to the proposed draft. Presumably we can at least hope that this repudiation of the National Accord would prove as impossible for the MPs to achieve as it would be for the people to swallow.

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* Yash Ghai is a professor of constitutional law. He is the head of the Constitution Advisory Support Unit of the United Nations Development Programme in Nepal and a special representative of the UN secretary general in Cambodia on human rights.
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