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UNCLAS SECTION 01 OF 03 NAIROBI 000712 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PREL PGOV KDEM KE
SUBJECT: CONSTITUTION REVIEW COMMITTEE FACES HUGE TASK 
 
¶1. Summary: The Constitution of Kenya Review Act of 2008, as part of 
the reform agenda outlined in the political power-sharing agreement, 
provided for a Committee of Experts (the Committee) to review the 
Kenyan Constitution and existing drafts from previous constitutional 
review efforts.  Following a public consultation process and a 
report to Parliament which is intended to identify contentious 
issues, the Committee is expected to present a "harmonized draft" to 
the Parliamentary Select Committee and then to Parliament for 
approval.  After Parliamentary approval, the draft is to be 
submitted to a national referendum.  Sworn in on March 2, the 
nine-member Committee of six Kenyans and three foreign experts has 
until December 22, 2009 to complete its ambitious task.  Initial 
reports from committee members indicate frustration with lack of 
financial and other resources, as well as concern and 
confusion about how best to achieve their legally mandated goals and 
responsibilities.  Delays in selecting a chairman to head the 
Interim Electoral Commission (septel), which is tasked with 
conducting the constitutional referendum, have also contributed to 
uncertainty about the review process. 
End summary. 
 
----------------------------- 
BIG MANDATE, SHORT TIME FRAME 
----------------------------- 
 
¶2. On March 2, the nine members of the Committee of Experts on 
constitutional review were sworn in.  The Committee was created by 
the Constitution of Kenya Review Act of 2008, with the following 
four-part mandate: to review existing prior draft constitutions and 
other relevant documents (including the version rejected by voters 
in the unsuccessful 2005 constitutional referendum and other 
drafts prepared by the defunct Constitution of Kenya Review 
Commission in 2004); to prepare a report to Parliament on issues 
that are agreed and those that remain contentious; to consult with 
the public on those contentious issues; and, to draft a harmonized 
proposed Constitution for approval by Parliament.  If approved by 
Parliament the draft would then be submitted for public approval by 
national referendum.  Both the Parliamentary approval and the 
referendum require a two-thirds majority to adopt the draft as 
Kenya's new constitution. The Review Act requires that the 
Committee's draft will specify which issues are already agreed, and 
those issues will not be submitted to the referendum. 
Constitutional experts note that some 80 percent of the content will 
likely not be controversial (as was the case in the 2005 effort to 
pass a new constitution), so the public will be voting on the 
remaining 20 percent of the issues that remain divisive. 
 
¶3. The Committee held its first meeting on March 4.  Because the 
clock on their 12-month mandate began running from the date 
President Kibaki signed the Review Act, they have just over nine 
months (until December 22, 2009) to complete their task. (Note: The 
only way for this deadline to be extended would be a Parliamentary 
amendment of the Review Act.  However, the Committee members have so 
far stated that they do not want such an extension. End note.)  The 
Kenyan members are Chairman Nzamba Kitonga, Deputy Chairman Atsango 
Chesoni, Njoki Ndung'u, Otiende Amolo, Abdirashid Hussein, and Bobby 
Mkangi.  The foreign members, all drawn from other Commonwealth 
countries, are Christina Murray of South Africa, Chaloka Beyani of 
Zambia, and Frederick Ssempembwa of Uganda.  Ex-officio members of 
the Committee are Attorney General Amos Wako and Committee director 
Ekuru Aukot.  While no one in Kenya is devoid of political ties, the 
committee members are generally viewed as, and have publicly 
expressed their commitment to be, politically neutral.  They are 
also considered to be competent legal experts with extensive 
legislative drafting experience.  The obvious exception is 
ex-officio member Wako, a close and long-time ally of President 
Kibaki. 
 
¶4. In a March 25 meeting with representatives from a number of major 
donor countries, Chesoni and Aukot (who serves as the administrative 
director of the Committee) outlined their progress to date and also 
described the challenges the Committee faces going forward.  To 
date, they reported, the Committee has developed a matrix analyzing 
the existing constitution.  Next steps include an offsite at which 
the team will develop their operational plan (which will be a public 
document).  After that, the members will review existing documents, 
including past competing drafts from the 2004-2005 constitutional 
review effort (widely known as the Bomas and Wako drafts, 
respectively), to evaluate which issues are agreed and which are 
"contentious" (a term not otherwise defined in the Review Act), and 
to develop an honest draft of a proposed constitution following the 
public consultation process laid out in the Review Act. (Note: The 
public participation element in this current effort to write a new 
constitution is greatly curtailed compared to the very extensive 
 
NAIROBI 00000712  002 OF 003 
 
 
consultations undertaken by the former Constitution of Kenya Review 
Commission from 2002-2004. End note.) 
 
----------------------------------- 
FINANCIAL SHORTFALLS POSE CHALLENGE 
----------------------------------- 
 
¶5. Aukot expressed concern about lack of financial resources, noting 
that the Committee's secretariat currently consists of himself and 
an assistant.  Part of the difficulty, according to Aukot, is that 
the Committee began its work toward the end of Kenya's fiscal year, 
which starts in July.  Chesoni also complained about the rigid 
requirements for spending the government funds that have been 
allocated thus far.  For example, she said, the Committee has a 
budget for drivers but not for researchers, and it is not allowed 
simply to hire researchers instead or to divert money from their 
hospitality budget for more substantive purposes.  She joked that 
members had discussed taking researchers out for an endless series 
of lunches and dinners in order to get the work done.  Aukot 
outlined a projected budget need of $6.5 million, of which the 
government has funded about $1.2 million, which prompted skeptical 
whispers from donors at the meeting.  Some donors, including the 
Dutch and Norwegian governments, have already pledged to supplement 
the Committee's budget. 
 
------------------- 
AMBIGUOUS DEADLINES 
------------------- 
 
¶6. Aukot and Chesoni also noted that the Review Act provides for 
four reviewing bodies: the Committee, the Parliamentary Select 
Committee (PSC), the Parliament, and the referendum.  As Aukot 
pointed out, the Committee is the 
only non-political organization involved in the constitutional 
review process. While there are some firm deadlines in the law, they 
expressed concern that ambiguities could lead to excessive delays. 
For example, the Committee has a firm timeline for drafting their 
report on contentious issues, presenting it to the public for a 
30-day comment period, and then to the PSC.  However, there are no 
deadlines for the PSC to respond or for the Parliament to respond if 
the PSC does not concur with the report.  Chesoni worried that this 
ambiguity in the Review Act could allow the PSC or Parliament to 
stall forward progress on the referendum, perhaps for long enough 
that it would become impossible to conclude before the 2012 
elections. 
 
-------------------- 
PUBLIC CONSULTATIONS 
-------------------- 
 
¶7. Chesoni noted that there is a very high degree of public 
skepticism with regard to commissions of this type, especially 
following the failure of the 
government-sponsored constitutional referendum in 2005.  The 2005 
referendum was preceded by some of the most comprehensive public 
consultations ever undertaken in connection with a constitutional 
review process.  However, many of those participating in these 
consultations felt that their desires and convictions were largely 
ignored in the final product.  The sense of disappointment was a 
major contributing factor to the proposed constitution's eventual 
defeat (in November 2005).  Chesoni said that there was a lot of 
concern within the Committee and in civil society about how the 
public would get involved this time.  She added that the committee 
members wanted to create a process that would allow for authentic 
and meaningful citizen participation, without the process being 
shortchanged or hijacked by any segment of the political elite. 
However, she and Aukot seemed to lack concrete ideas about how to 
make that happen.  While expressing the desire to start a civic 
education process as soon as possible, they did not offer any 
specifics about what that process should look like or how it will be 
funded. 
 
------- 
COMMENT 
------- 
 
¶8. Constitutional reform is arguably the most important (and longest 
overdue) of the reform commitments made in the political 
power-sharing agreement signed in February 2008.  If done well, a 
new constitution would address some of the 
core underlying issues that gave rise to violence in the 1992, 1997, 
and 2007 elections, including the division of executive power 
between the president and prime minister, land rights, and the 
devolution of funds and political power away from the central 
 
NAIROBI 00000712  003 OF 003 
 
 
government.  While the Committee members want to make a good faith 
effort to advance this agenda, they are handicapped by some 
practical and political considerations, including a very short 
mandate, budget constraints, and the lack of a clear common vision 
on how to conduct the public consultation process and develop a 
harmonized draft. 
 
¶9. As a practical matter, the referendum needs to go forward by the 
end of 2010 at the very latest, or it will be subsumed in the 
political struggle as candidates vie to replace Kibaki in 2012.  The 
review process may also be further undermined by other initiatives 
already planned to begin this year that could be flashpoints for 
conflict, including a national census and planned redistricting 
exercise that could substantially redraw the Kenyan political map. 
We will continue to push the government to support the 
constitutional review process, both rhetorically and financially. 
We are indirectly supporting the work of the committee through our 
ongoing civil society strengthening program, which will help civil 
society to formulate and present its ideas on the constitutional 
review process.  We have (through USAID) also allocated $500,000 for 
FY 09 to the multi-donor supported National Civic Education Program 
(NCEP), which will assist the Committee in the civic education 
component of its work.  Additional funding from Washington for NCEP 
would be helpful in this regard.  We continue to coordinate closely 
on this issue with other international donors.  We will also engage 
with the committee mebers to encourage a prompt and inclusive 
process. 
 
 
RANNEBERGER