How to make a new constitution in Kenya today

A new constitution, a new social contract for the people of Kenya and its leaders should be developed as soon as possible and guarded against an impending overthrow by parliament.

Parliamentarians have taken their role of lawmaking a notch higher and are proposing themselves as a "Constituent Assembly" through the provisions of the Constitution of Kenya Review Act 2008. This is unlawful and is prone to legal challenge. The civil society and religious groups and other actors have pointed at this misnomer since the Act was put in place in December 08 but to date, even in the Kenya Statute [Miscellaneous Amendment] Bill 2009, the intent to disenfranchise Kenyans is rife.

Parliamentarians are Kenyans, but they are elected for parliamentary function and not for constitution making. If, as is the case today, they make a law that ensures that they are the ones - and only ones - to be the clearing house of the new constitution for Kenya, this is unacceptable. Likewise, the political party sideshows of "minimum" and "comprehensive" reforms are time-wasting pranks that show the lack of leadership in this country. We need a new constitution, not political grandstanding.

It is a torturous road towards a new constitution, and we have made good steps so far as a nation. We should neither lose hope nor accept disenfranchisement. We require the MPs to amend the Miscellaneous Amendment Bill to reflect the following:

1. That the Reference Group be expanded to include the Parliamentary Select Committee (PSC) and other groups (such as parliamentary political party representatives) as may be necessary after review of the proposals made - as substantive members, and the Committee of Experts [CoE] - as ex-official.

2. That this group be renamed Council of Reference and be given a substantive role in the constitution making process. As it is, it is at the mercy of the CoE in terms of convening and it has no role as such.

3. That the non-consensus issues be debated by the Council of Reference and passed for adoption by parliament

4. That parliament, since it will be represented in the Council of Reference by the PSC and other parliamentarians, will have no role in proposing further amendments to the Draft Constitution before it is published by the AG. However, where parliament has proposals, these will be processed and consensus build on them by the Council of Reference.

5. That where consensus is developed on issues, these be input in the draft to go for a national YES referendum. This will be a document WITHOUT contentious issues, a document that contains all issues that Kenyans agree on - it will contain what has been popularly known as the 80% good provisions!

6. That where there is lack of consensus on an issue, this issue be put aside framed into a question for an issue-referendum {YES/NO}. This will mean that the majority vote on the issue is the decision to be upheld. If this does not happen, further consensus can be built on them even after the referendum on the main document has passed.

7. That a specific timeframe (at most 2 years) for resolution of these non-consensus issues be set and adhered to. In this time of renegotiation, Kenyans will be enjoying a new {though incomplete} constitution - which is FAR MUCH better than the tattered one we have now.

This is the ONLY way of ensuring that we have a new constitutional framework and that we do not have disagreements leading to a useless document, hence a political campaign for a NO vote that will have no other role but to divide Kenyans the more.

Let nobody call these Minumum Reforms, for it is not. This is a progressive way of achieving comprehensive reforms.