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In the wake of the KANU-NDP merger, Jurist of the Year, Njonjo Mue writes to
President Moi urging him to use wisely the short time between now and his
impending retirement to lay a firm foundation for a truly democratic
dispensation in Kenya. But will the President listen?


28 August 2001


H.E. Daniel arap Moi
President of the Republic of Kenya

Office of the President

Harambee Avenue

Nairobi

Kenya



Fax: 254 -2 - 721515 / 210150



Dear Mr President,



In the past fortnight, two important events have taken place that observers
regard as milestones on Kenya's political landscape. The first is the defeat
in Parliament of the Constitution of Kenya (Amendment) Bill, No 2 of 2001,
which would have entrenched the Kenya Anti-Corruption Authority (KACA) in
the Constitution. This was a humiliating setback for your government,
especially after you raised the stakes by turning out personally in
Parliament to cast your vote. The second event is the agreement last week by
KANU and NDP delegates to mandate the leadership of the two parties to
effect a merger.



While these two events are not directly related, I would like to take the
opportunity they present to address you once again on crucial issues
pertaining to the impending political transition in Kenya, and which as yet
remain unresolved.



Mr. President, I refer you to my letter to you of 22 December 1999, which I
attach here for ease of reference. In that letter, I warned of the extreme
frustration that young Kenyans were experiencing at the hands of a political
establishment which did not seem in the least interested in applying their
minds to resolving the huge problems facing the nation at the dawn of the
new century, notably the twin challenges of poverty and underdevelopment.



Sadly, almost two years later, the situation has only gotten worse; and the
chickens are coming home to roost as clearly illustrated by the recent
explosion of unrest in schools and other institutions of learning. And
instead of taking the bold steps required to reverse the decay, you have now
turned your attention to presiding over marriages of convenience between
your party and any other that might be interested in buying into your rather
blurred vision for our country.



On the face of it, the merger between KANU and NDP announced last week is a
matter entirely for the two parties in the exercise of their fundamental
right to freedom of association. However, when viewed in the context of
recent political developments, it assumes critical importance for all
Kenyans.



The proposed merger comes just as the constitutional review process gets
underway. Kenyans have not forgotten the stony road we have trod to get to
where we are with regard to the review, nor the controversial role that both
you and Mr. Odinga have played in barring the people from having any
meaningful say in how they are to be governed. It is also an open secret
that Mr. Odinga desperately wishes to see a parliamentary system of
government with himself as the putative Prime Minister.



Mr. Odinga is certainly entitled to his dreams. But the fact that the
Parliamentary Select Committee on Constitutional Review, which he chairs and
that is dominated by KANU-NDP apparatchiks, remains in place does not augur
well for the country. Nor does the fact that Mr. Odinga's lieutenant, Mbita
MP Otieno Kajwang' has brought a motion seeking to extend the term of the
current parliament ostensibly to oversee the process of constitutional
review.



Mr. President, our path to nationhood has entered its most critical phase.
You have stated time and again that you wish to leave behind a strong united
country at peace with itself when you retire as Head of State next year. I
opine that you have a very small window of opportunity within which to do
this and time is fast slipping away. Swallowing NDP is in my view, not the
way to achieve your stated goal. For I see no other purpose for which the
merger is being pursued than to ensure KANU retains power by all means
necessary. And while I do not begrudge KANU, or any other party for that
matter, its right to seek power, I believe that there is a higher purpose to
politics than this. Politics is meant to help people to realise their
fullest potential, not merely to enable the powerful to trample over the
powerless in the scramble to control the resources of the land.



But even if you are not in principle inclined to exercise caution in this
regard, you might be pragmatically so inclined. Which brings me to the
defeat of the KACA bill. In my view, the principal lesson to be learned from
that experience is this: that on the issues that are of real importance to
the nation, such as anything to do with the Constitution, swallowing up
former opponents will not suffice to provide a way forward. We must reach
out in good faith across the political divide and forge true consensus. What
's more, we must find new ways of truly involving the people in determining
their own destiny. The sooner we start doing that, instead of wasting
precious time and scarce resources cobbling together untenable political
alliances, the better it will be for Kenya.



Finally, Mr. President, it is clear to me that in the political climate that
currently prevails and that is likely to prevail in Kenya as we count down
to the 2002 election, it is unrealistic to expect that we shall have written
a new constitution in time for the election. And while I have the greatest
faith in Prof. Yash Ghai and his team, I see a real danger of the process
being manipulated to the advantage of certain political interests and the
detriment of the Kenyan people. To avoid this, we should accept now what
appears to be an obvious reality - that there shall be no new constitution
by 2002 - and reason together, while we yet have the time, as to how best to
proceed. This will avoid another IPPG being sprung again on us under the
pressure of an impending election and national interest being once again
sacrificed on the altar of political expediency.



In the circumstances, I would strongly counsel that we proceed according to
the following five-point plan:



  1.. The Parliamentary Select Committee on Constitutional Review, having
served its purpose, should be disbanded forthwith.
  2.. The Ghai Commission's mandate should be revised and limited to drawing
up a set of constitutional principles upon which a new constitution shall be
based. It should also draft, in consultation with all stakeholders, an
Interim Constitution whose aim will be to provide a framework for free and
fair elections next year and the governance of the country during the first
five years of transition after you leave office.
  3.. Next year's elections should choose a parliament as well as an elected
Constituent Assembly to draw up and adopt a new final Constitution within
the first three years of the next parliament. The new Constitution should
conform to the constitutional principles that shall have been drawn up by
the Ghai team and debated and adopted by the nation before we go to the
polls in 2002.
  4.. The period between now and the 2002 elections should be used wisely to
create an enabling environment for free and fair elections. In this regard,
the shameful behaviour the police exhibited in Mombasa against MP Charity
Ngilu over the weekend cannot be tolerated. The minimum conditions for a
free and fair election, in my view, should include the following:
a)      The issuance of identity and voters cards without discrimination to
all Kenyans who qualify. This exercise should start immediately and be
continuously carried out until two months before the 2002 elections leaving
just enough time to compile the voters' roll. Arrangements should also be
made to register Kenyans living abroad who should be able to vote in the
elections.

b)     Equitable access of all parties to state-owned media, especially the
Kenya Broadcasting Corporation. To make this a reality, KBC should be placed
under the oversight of a multiparty board between now and the election.
Private media should also have a public service focus inserted into their
licences requiring them to equitably cover all shades of opinion in the run
up to the elections.

c)      Unhindered access to the electorate by all parties. This should be
facilitated by dispensing with the requirement to obtain licences for
rallies. Parties should only be required to give notice of their rallies to
the police who should provide security but should not have the power to
interfere with or arbitrarily cancel rallies unless there is a clear and
present danger of violence breaking out. In the one-year period before the
election, the police commissioner should be made accountable to a multiparty
Independent Directorate, which will monitor the police force's compliance.

d)     The Provincial Administration should be forbidden from taking any
part whatsoever in the electoral process, which should be the sole
responsibility of a reconstituted and truly independent electoral
commission.

e)      The ruling party should be prohibited from the unlawful use of state
resources for its campaigns. The president and cabinet ministers should also
be prohibited from using state resources or state functions for partisan
political purposes. Where the president uses such functions and live radio
transmissions for such purposes, opposition parties should have a right of
reply in the same medium.

f)       There should be state funding of all parliamentary political
parties on an equitable basis to be mutually agreed ahead of the next
general election.



  5.. The next government should have representatives on a proportional
basis of all the parties that get over 20% of the seats in parliament.  It
should also include representatives of underrepresented interest groups.
This transitional government will be charged with presiding over the
transition to a democratic dispensation within a period of five years, i.e.
the lifetime of the next parliament.


All this should be carefully laid out in an Interim Constitution that should
be agreed before the election. The Ghai team should now focus its limited
time and resources on spearheading efforts aimed at drawing up such an
Interim Constitution.



Mr. President, I need not point out that your government is in a state of
alarming decline. It has manifestly failed in performing the basic tasks of
a government, i.e. guaranteeing peace and security, facilitating economic
growth and rolling back poverty, ignorance and disease. The time left in
your presidency is not sufficient to turn back this tide, but it may be just
enough for you to begin laying the foundation for a transition to a truly
democratic system based on dignity, equality and justice for all Kenyans.



Future generations will judge you based on whether in the coming months, you
will have the courage to reach out to all the people of Kenya for this
purpose, or you will continue walking down the destructive path of divisive
partisan politics that you have embarked upon in the company of some
politicians whose sole aim is to use the twilight of your presidency to
propel themselves to power through manipulation rather than by election
following a truly democratic process.



It is my hope and prayer that the statesman in you will prevail over the
politician for the sake of our beloved country.



Yours faithfully,

Njonjo Mue



CC. Prof. Yash Pal Ghai

Chairperson

Constitutional Review Commission of Kenya