CONSTITUTION OF KENYA REVIEW COMMISSION
(CKRC)
Verbatim Report of
CONSTITUTION OF KENYA REVIEW COMMISSION PLENARY MEETING HELD AT LEISURE LODGE, MOMBASA
September 19, 2002
CONSTITUTION OF KENYA REVIEW COMMISSION
PLENARY MEETING HELD ON SEPTEMBER 19, 2002 AT LEISURE LODGE, MOMBASA.
Present:
- Prof. Yash Pal Ghai - Chairperson
- Prof. W.H.O. Okoth Ogendo - Commissioner
- Prof. Wanjiku Kabira - “
- Dr. Charles Maranga - “
- Ms. Nancy Baraza - “
- Mr. John Mutakha Kangu - “
- Mr. Isaack Hassan - “
- Dr. Abdirizak Nunow - “
- Mr. Isaack Lenaola - “
Drafts Team:
Ms. Pauline Nyamwenya
Mr. Oyaya
Ms. Eunice Gichangi
Verbatim Recorder - Patricia Mwangi
Meeting was called to order at 5.20 p.m.
Prof. Yash Pal Ghai: ------(inaudible) drafting team, we might have a brief meeting with them and then if comments are very clear, we can leave them with those comments. I have myself not made much progress, I have only got up to the part dealing with the recommendations of people, but I have looked at those very carefully and have written my comments on that. And the way I am going, it would be quite a long time before I key in all that; maybe I am very slow.
Com. Ogendo: (inaudible).
Prof. Ghai: I don’t know at this rate, how long it will take, I can try to speed at my own pace (inaudible) ready to discuss on the draft than I am.
My feeling is that on the Executive and Parliament, there is quite a lot more to be done, and having explained the chapter ………….. (inaudible), so maybe we could just discuss how we are going to proceed. Yes, Charles.
Com. Maranga: Mr. Chairman, I have looked at this document. I am on a number of pages. Maybe now I have reached 133, but Mr. Chairman, I think the best way to proceed and if members agree, we should start right from page 1 of this document. If we can go ahead and clear the Preamble, we go to the following chapter we clear it, and we do the correct formulation here, so that they can make those changes on the diskette. I think that will make us move much faster, rather than making comments, like the ones you have circulated now, then it will be another bulky kind of documentation which will take a long time.
So Mr. Chairman, I was going to suggest that we use as a basis, this document, we go page by page, and then we make our comments on each section. I think that will be much faster than maybe making comments. That is my suggestion Mr. Chairman.
Com. Hassan: I think Mr. Chairman, it is better if-- Dirst of all I thought they will be here, the drafting team, because then maybe they will have gotten the sense of the discussion that we are making and the corrections we are making. But then maybe, again, for those of us who have gone through the document, maybe we first-- There are very obvious and general errors of format so why don’t we straight away go into that, discuss and dispose of them.
And then if we can’t finish all of it, or I thought maybe we go through the recommendations and make our own, everybody makes his own general comments, and then if you have to come now to specifics, we can do that only once we have a draft. This is the zero draft and it is still incomplete. That is my view.
Com. Lenaola: Thank you Mr. Chairman. I don’t know what the status of the document is since we last received this one. Have there been any changes made by the draft persons because……..
(Interjection) Prof. Yash Pal Ghai: ---- (inaudible)
Com. Lenaola: That would be a good question because then we would know what…..
Com. Prof. Okoth Ogendo: Mr. Chairman, I know that they are working and refining their work. But what I told them was that, rather than move back and produce other drafts, we will comment on what we have and give them our comments and then they can merge our comments with the refinement they have made so that they can give us first draft. So, I think we can proceed without due regard, except for the chapters they have circulated on Constitutional Commissions. I think we can move with this document and give them our comments, and then they will produce a document that will combine what they have been working on since last night.
But while I am on the microphone, Mr. Chairman, I think it would be useful if we took the Maranga route and went page by page, making both general and specific comments if we can, and try to move as far as we can get with this.
Prof. Yash Pal Ghai: My view is that, it is quite a long document and one thing we should keep in mind is how we can reduce the ………
Com. Kangu: Mr. Chairman, I suggest that we go page by page, so that we dispose off parts, sure that we are not going back to them. But before we do that, maybe we should start with the table of contents to see whether we can restructure it in terms of the conceptual approach we had to see whether it is okay.
There are certain parts we can quickly slice out because they are simply repetitions. Like on the Parliament, there are several pages of repetition and that can just be cut out and if they are on diskette so that the document starts becoming smaller, and then we move on. We may not be able to go far, but I am sure that if we go straight say to the Preamble, we discuss, we agree on what on what we want, we put it aside, we move to the next thing, it may take us quite some time, yes, but it would be the best way than to say, let us do general discussions, hand over comments, we bring back, we go back to reading, we will end up reading so many documents without making headway.
Prof. Yash Pal Ghai: So, maybe we can look at the Table of Contents, then, I think we amend it, we can ………
Com. Prof. Okoth-Ogendo: Chairman, I had asked them if they could provide a more detailed Table of Contents and their response was that, they would want to do that after they think they have a reasonably complete draft. So, I think we can discuss the text and deal with that issue of the Table of Contents later.
Prof. Yash Pal Ghai: Okay, that is an exact information and therefore can start with page 1 or rather ……….
Com. Lenaola: Why can’t one of them be here to get the views of the meeting?
Com. Prof. Okoth-Ogendo: I don’t think there is need for them.
Com. Hassan: So that when we give….
Com. Prof. Okoth-Ogendo: I think first we go to the first draft, Hassan will go through the …….
Com. Hassan: We don’t want that either. No, I think we are putting it wrong. I don’t think we will be………….. (inaudible) and that is why we are doing the drafting. I believe they cannot understand, that has been the core problem, they have not been understanding some of these issues. Like now I went through the chapter on Constitutional Commissions, it is obvious that they have not been able to understand what we have been talking about. I don’t know how a second-hand information will help them again.
Com. Prof. Okoth-Ogendo: Mr. Chairman, I don’t see what the problem is, if Hassan thinks the secretariat can’t take those drafts, we will keep them. But I don’t think we need them at this point.
Com. Baraza: Probably, Prof. Okoth-Ogendo you could explain to us, what would befall them or us if they came in at this stage.
Com. Prof. Okoth-Ogendo: Because, I think, they are working and I believe very strongly that we should allow them to continue working the way they have been working, just day and day, and that this meeting should be a draft meeting among us first before we can ask them to come and sit with us here.
---- (inaudible) reading it, the many points they haven’t completely understood. So I think we should just draft it and give it to them. But I think if we just make comments, maybe, I don’t know whether they will understand what we are trying to do.
Yes, Wanjiku.
Com. Kabira: I was going to say, even if it was I think one of them, I think we will still be wasting more time again trying to explain to them. I think what Hassan is saying is that, we need one of them, particularly the person who is going to deal with the putting together of the final draft, one or two, at least to be there and capture the spirit of the agreements that we are making at this point. I think we would be better of……
Com. Maranga: The various drafters were dealing with different sections. So, now that we are starting with the Preamble and maybe we might go to the Human Rights Section, if we can get that person who was dealing with that, I think that would be nice.
Prof. Yash Pal Ghai: No idea who has been doing what. Maybe …….
Com. Prof. Okoth-Ogendo: Mr. Chairman, eventually, one person is going to have to fight for the irregularity of this. And all those drafters should be able to get the total picture, and I don’t think we need to call them one by one on their various sections.
If it is important that we should have one of them here, I would suggest we get Nyegenye to come and sit here with us to do this.
Com. Hassan: There are some parts as John Kangu has said, which are very much a repetition of the same chapter. For example, from pages 134 to 159. First of all, if you go to page 130, Mr. Chairman, you will see that the section stops at section 174 on page 127, and then start at section 178. If you can look at page 127, section 174, and then the next document is page 130 which starts at section 178, I don’t know whether you have that.
Prof. Yash Pal Ghai: Page 130, 134, yes I have that.
Com. Hassan: 178.
Prof. Yash Pal Ghai: Two pages are missing.
Com. Hassan: So, there are two pages missing.
Com. Prof. Okoth-Ogendo: The section where there is ………
Com. Hassan: I know I am, document 5 will maybe show you the repetitions that I am talking about. And then from page 134 to page 166, the entire thing is a repetition of section 133 to section 174. That is one.
And then, on page 161 through to page 166, same thing, it is a repetition. ------(inaudible).
Prof. Yash Pal Ghai: So what is the solution? What we should remove is pages ……
(Interjection) Com. Prof. Okoth-Ogendo: I think Chairman we will get to the minute that those of us who have gone through the document, when we get to page 134, will be able to tell you what we should do. And part of the repetition of the process of merging was because this particular diskette came a lot later than the other diskettes. And it had two drafts on it and both of them were ………. (inaudible).
Prof. Yash Pal Ghai: ------(inaudible). I think the ideas were okay except for the language.
Com. Prof. Okoth-Ogendo: Mr. Chairman, why don’t you go round and seek our comments.
Com. Kangu: I have suggestions that may not be that, in the paragraph that starts with ……… (inaudible) social injustice and prosperity rather than ………………. (inaudible), we talk in terms of prosperity rather than progress. The last paragraph that begins with “committed…” and my view is that the goal is social justice and prosperity, and unity, peace, equality and democracy are means to the goal. So, we would rather start, say, in the arrangement, we should begin with “social justice and prosperity” and then the others can follow or …… (inaudible) with probably a word in-between “social justice and prosperity” through “unity, peace, equality and democracy”. That is what I would like to put.
And then, “social justice and prosperity”, that should be what should begin, and then, unity, peace, equality and democracy follow. Because, I am saying, those are means to social justice and prosperity. I don’t know whether that makes sense.
Then in the same paragraph, we are saying establishing a social-economic and political order which will recognize the supremacy of court. I do not know whether that is where we really want to bring it ……. (inaudible). I think, somehow misplaced in the arrangement. It should come right at the end because we will be asking for too much from him. (laughter) What we are saying, this paragraph, is what we should do ourselves and I leave him at the end.
Then, I had a question on our concluding Kiswahili phrase there. Since we have taken a decision to translate, I would think that we would rather find an English version and then the Kiswahili will have the Kiswahili version. I don’t know whether that makes sense.
Com. Lenaola: Mr. Chairman, on the place of God in the Preamble, obviously this was the formulation put this promise of God in the wrong place. And it would be repetitious to have supremacy of God in the second last paragraph, and then the intonation in the last paragraph, “Mungu ibariki Kenya”. So I think if we should have God at all, as we must, let us have it at the very end.
I also agree that we are going to have the Kiswahili version coming out in its Swahili sense. So, although this is attractive, but again in terms of formulation, let us have “God bless Kenya”, if we must in English, in this text and then the Kiswahili version in Kiswahili.
Prof. Yash Pal Ghai: ------(inaudible)
Com. Kabira: I wanted us to remove the word “cognizance”, “for bearers”, and probably have simpler words. I don’t know, I am just looking at your second paragraph. Drawing on the strength be gained in diversity, whether we could borrow something from that recommendation you had in your paragraph, because I like the concept of being, I have been proud of our diversity, not having to struggle against it, I think as it appears later.
Prof. Yash Pal Ghai: ------(inaudible)
Com. Kabira: ------(inaudible)
Com. Baraza: Are you done?