CHAPTER ONE

GUARANTEEING A NEW CONSTITUTION AND AN ETHICAL GOVERNANCE AGENDA

The Challenges:

In December 2002 there was a great sense of optimism and euphoria when President Kibaki and the NARC government were sworn into power. Kenyans and the international community welcomed the change in leadership. However, the optimism was very short-lived. The immediate rejection of the pre-election Memorandum of Understanding by Kibaki, his first act of betrayal in breaking the covenant he had made with his peers, was only the first step on a slippery slope to going back to the old political ways of doing business in Kenya under President Moi. Kibaki, like his predecessor, began to discharge his duties in an autocratic manner and justified the abuse of power under the current constitution which Kenyans expected him to quickly phase out. He began his presidency with betrayal and shattered the dream of all Kenyans who looked forward to an all-inclusive government premised on fundamental reforms.

No consultation and no consensus are President Kibaki’s trademarks in governance. His recent appointments to the Electoral Commission of Kenya, in marked contrast to his fervent views held in opposition for an independent Electoral Commission, demonstrate his dictatorial behaviour, and he fails to grasp that he is presiding over a multi-party political era in Kenya. Mwai Kibaki was never enthusiastic about multi-partyism in the first place. He described those calling for the end of the single-party dictatorship as trying to cut the mugumo tree with a razor blade!

It was the work of Kenyans that brought the mighty KANU down to its knees. It was Kenyans resilience that ensured the repeal of Section 2A of the Constitution. We thank Ken Matiba, Charles Rubia, Martin Shikuku, Raila Odinga, the late Masinde Muliro, the late Jaramogi Oginga Odinga and all other brave men and women who fought for the restoration of democratic space in our country. The moment we created the space, the ever opportunist Mwai Kibaki, who had never tasted the discomfort and pain caused by holding strong political beliefs and fighting for it, unlike his peers, left KANU and President Moi to launch his Democratic Party (DP). The architects of the one-party system have once more coalesced in the name of the Party of National Unity (PNU) to resist democratic change as demanded by Kenyans. President Kibaki has consistently failed to provide enlightened and effective leadership and now has led Kenyans back to the elitist and chauvinist past. Kibaki, Moi and the PNU must be defeated if we are ever to consolidate and enhance our democratic gains.

The desire for a new constitution by Kenyans for Kenyans has been a long struggle thwarted first by the repressive Moi regime only to be followed by the regressive Kibaki regime. Kibaki had assured Kenyans that he would introduce a new constitution within 100 days if elected. He quickly reneged on the promise.

The “Bomas” was an inclusive, people driven, and consultative process in constitution drafting. Enormous time, resources and expertise were utilized. Kenyans declared a vision of a country with a genuine democratic, accountable and responsive government that fostered national harmony by effective power sharing and devolution. Most saliently, Kenyans demanded a less overbearing presidency. The Kibaki Government subverted people’s views by presenting the “Wako Draft” and taking it to a referendum. Kibaki’s cronies were heard to say that constitutional change was a necessity for removing Moi from power but now that “one of their own” was in power, there was no need for a new constitution that would bring about genuine power-sharing. This subversion of the “Bomas Draft” of a new constitution was his second act of betrayal. He broke his covenant with the people of Kenya. President Kibaki lost the referendum by a landslide and dismissed those progressive individuals from the cabinet who demanded that peoples’ voices be heard and acted upon. Thereafter, he cocooned in government with the very individuals Kenyans had so massively voted against in 2002.

The lethal repressive and regressive political forces have now realigned themselves in this election. Former President Moi has endorsed President Kibaki bringing with him his pet “project” Uhuru Kenyatta in his back pocket followed by a motley crew of big-time crooks, such as, Nicholas Biwott and Kamlesh Pattni are some of the key actors in PNU. The Nyayo Empire that scampered out of the back door of power in December 2002 has inally sneaked back in the Kibaki State House – unashamedly through the front door!

Of all the transgressions of the Kibaki presidency there is only one that towers above all else and that is his acceptance of corruption – past and present – advocating zero-tolerance at the swearing-in ceremony and now tolerating it one hundred percent. The chant “everything is possible without Moi” has turned “if you want to misrule and loot your country then it is only possible with Moi.”

The creation of an ofice of “corruption czar” was a master stroke in domestic and international public relations. But it came to haunt President Kibaki whose government has failed to live up to its election promises. His government has failed to bring the individuals in the Goldenberg grand larceny (conducted in President Moi’s tenure of ofice where at least Kshs. 18 billion of public money was stolen) before courts of law to answer for their crimes.

There is also the infamous Anglo Leasing case where the Kibaki Government was involved in fraudulent contracting and procuring. The perpetrators of this crime are well known – but well protected, the only “victim” being the person who had courage and decency to expose it. President Kibaki within months of his presidency completed his set of betrayals by letting the international donor community down whom he had assured that he would eliminate corruption. When briefed by John Githongo of new cases of corrupt practices which involved his members of Cabinet, Kibaki casually told him that “this is how it is …done!”

This singular event accurately sums up President Kibaki who has been integral in all post-colonial administrations – his future is his past. He has lost all credibility and failed to provide leadership. He is unfit to govern. He must be denied another chance to work for the few at the expense of working for all Kenyans.

The major source of human rights violations in Kenya is the impunity that high ranking and well connected oficials and citizens seem to possess. There are two set of laws: one for the rich and powerful and another for the poor, so much so that our jails are illed with poor people who cannot afford lawyers or who cannot understand the law. More than 99% of the prisoners in Kenya are poor, yet crime is committed by all kinds of people. The Kibaki administration’s record on solving crime is abysmal. The parliamentary report on the Artur brothers had identiied key members of the Kibaki family and State House oficials as being involved. Yet, there has been no action taken against any of them. Once again the Kibaki Government’s justice system works for the few but not for all. “Let the work continue for the few” wins again. Kazi iendelee?

Tribalism is the instinctive tendency to recognize, judge and reward people according to their group identity rather than their characteristics as individuals. Ethnicity is a national disease knowing no regional boundaries and not confined to any one community. It rules our national politics and divides us unnecessarily. The Kibaki Government has compounded the ethnicity factor and deepened ethnicity in our public service by appointing people from his own community. Thus, the reorganization of the Government was dictated by prejudice and not equity. There have been various reports illustrating that the Kikuyu and Meru have more senior positions than any other ethnic groups in the Government and the share of the Kalenjin as DCs had declined considerably in favour of the Kikuyu. In an act of embarrassment the Government then rushed to announce a task force to examine the disparities with a view to seeking redress. The Kibaki Government has failed to promote competitiveness and inclusion taking cognisance of equity among genders and regions. The Kibaki government’s kazi iendelee means let the status quo prevail – public jobs for the few and not the many.

Our Commitments:

ODM will renew faith in our politics and provide sound leadership based on principles of consensus and fairness. Equity and inclusiveness are our watchwords.

We will govern in the interest of all and build a nation in which we all have a stake.

We view corruption as a pernicious crime against humanity, and we will eliminate it.

We will ensure that in government we represent all the people, not just one interest group. We will actively seek to remove those obstacles which hinder individual achievement – obstacles emanating

from tribe, gender, or economic condition. We will address the issue of ethnicity in our country.

Your ODM Government will:

• Guarantee a new Constitution within 6 months to ensure Equity, Executive Accountability and Devolution of Power.

• Introduce parliamentary system of government, where power will be shared and not concentrated in one person or ofice.

• Entrench Economic, Social and Cultural Rights in the Bill of Rights with limited claw-back causes for political and civil rights.

• Entrench the Kenya National Commission on Human Rights and increase its funding. We will make provision for the domestication of all international treaties which Kenya has acceded to or ratified.

• Review the functions and efficacy of the institutions set up by the government to fight corruption as billions of public funds are spent to finance them with no tangible outcome with a view to its rationalisation. So the expensive tenure of the Chief Executive of the KACC, his fellow directors and the institution as a whole will be rationalised.

• Review and strengthen the capacity of the Attorney General’s Office and that of the Solicitor General.

• Establish a Truth and Restitution Commission to bring closure to past corrupt crimes via a process of Justice, Truth, Reconciliation and Restitution. This shall include asset recovery and amnesty where restitution has been made. To this end we shall legally establish a system through a “Restitution Instrument” to facilitate this. For those who admit, declare and repay there shall be forgiveness. For those who forget or pretend to forget their past abuses they shall go through the justice system before they are exonerated. A process driven by justice - making good or compensating for past loss, damage, and injury; is what we are proposing. We intend to facilitate a process that will see the return to the Kenyan people what is rightfully theirs. The principle of Restitution has ancient African roots.

• Implement the principle of Transparency in Public Affairs (To this end will implement the Public Oficer Ethics Act and go further to facilitate the open disclosure of wealth declarations starting with the President).

• Enhance the capacity of the Judiciary to revive confidence in the rule of law and facilitate greater access to justice by all.

• Establish a public service accountability unit to set standards that will ensure effective performance based on actual outcomes within the society, not outputs that are only visible within the offices.

• Enact an Access of Information Bill into law to ensure transparency and abolish the tradition of secrecy through which corruption and malfeasance have thrived.

• Amend the Public Officer’s Ethics Act to make wealth declarations public and hence within public scrutiny.

• Establish a framework that will address and provide redress for past human rights violations and administrative injustices.

• Work with the United Nations and the World Bank who have recently launched Stolen Asset Recovery Initiative.

• Ensure respect for the rule of law and use the criminal justice system to ensure conviction and just punishment for all those convicted on corruption charges.

• Review the public procurement laws and procedures with a view to making it more open to the public and sealing the loopholes that continue to facilitate grand corruption in Kenya.

• Guarantee to build a Kenyan society based on fairness and equality of opportunity for all where merit comes before privilege.

• Introduce an independent Presidential Public Appointments Commission whose task is to ensure that appointments to public offices are based on merit and reflect the ethnic diversity of Kenya in its overall representation (The Commission will have to publish its appointments on an annual basis so one can check that all ethnic groups have been given equal opportunity to serve and are duly appointed).

• Introduce Community Relations legislation to prohibit any form of discrimination in terms of one’s membership of an ethnic group.