Kenya: Proposed Roadmap to a New Dispensation (February 2000)

[In February 2000, the Moi Government was in an advanced stage of sabotaging the constitutional review process. After ten years of trying to get a new constitution, it seemed President Moi could not fathom a new dispensation and was throwing all sorts of obstacles on the way to the rebirth of the Republic. The country was in gridlock and Moi (or rather his removal) held the key to recreating our republic. We were desperate for new ideas that would satisfy most interests and create space for a new Kenya to be born. At the time, I lived in Johannesburg and I engaged in private conversations with a group of friends brainstorming on possible ways out of our national quagmire. I publish below, under my 10 year rule of keeping private papers private, a possible road map to a new dispensation which I developed for discussion in early 2000. Reading it now, I see I was a bit naive on a number of important points, but I also see that I was ahead of the curve on a number of others.]


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KENYA: ROADMAP TO A NEW DISPENSATION

DISCUSSION PAPER BY NJONJO MUE

4 FEBRUARY 2000

1. Current situation:

1. Kenya is grinding to a halt in all spheres, especially the political and economic.
2. There is clearly no vision on either side of the political divide as to where the country should be going. We have collapsed everything to the middle and we all surround the constitution (making process) like vultures around a carcass.
3. KANU is the majority party, but its perceived dominance is not sustainable; and though they may huff and puff, they must surely realize that the future for all of us is really rather bleak, and that by themselves, they are clearly incapable of leading the country through the treacherous path that lies ahead.
4. The country is fast approaching breaking point, and may not stand up under the strain towards and beyond 2002. This is a truism that most observers will have noted. Challenges include poverty, the AIDS crisis, economic collapse, non-existent infrastructure, huge social disparities, ethnic suspicion and disunity, etc.
5. President Moi, after 21 years at the helm, is clearly tired and would like to retire, but he is uncertain as to his own safety after retirement and that of his people. And so he belligerently continues to cling on to power and to try and extend his tenure beyond 2002, either directly or indirectly.
6. All role-players have accepted that Kenya needs a new dispensation, but we cannot seem to agree on how to go about achieving it.
7. Most role-players in the reform process have vested interests and there is mutual suspicion even when good ideas are mooted. It remains impossible to find common ground and proceed in good faith for the good of the country. Yet common ground must be found if the country is to be saved from imminent collapse.

2. Voices of reason, forces of moderation 

We are agreed that Moi’s government has done our country great damage. But this is not the time to apportion blame. Therefore, while retaining a non-compromising attitude publicly, we should think about the possibility of engaging in some realpolitik privately. In this regard, can we try and privately approach Moi to try and strike a deal in these terms:

a)      finding out what are his primary concerns post 2002;

b)      finding out what is negotiable and trying to guarantee that which can be guaranteed within the bounds of reason;

c)      once this is done and in return therefore, then Moi might be persuaded to agree to the adoption on an interim constitution by the end of this year;

d)      all stakeholders would be invited to propose a set of constitutional principles (20 – 30) which would bind a Constituent Assembly in drafting a new Constitution after the next General Election;

e)      The next election would yield not just a parliament, but a Constituent Assembly;

f)        Prior to the 2002 election, there would be a formula for setting up a government of national unity to govern during the 5 year (?) tenure of the Constituent Assembly. If this process sounds familiar, it is because it is what was done in South Africa to usher in majority rule.

3. Process 

Short term – Kenya Eminent Persons Group (KENPEG)

The key is Moi. If we got an Eminent Persons Group that does not include any of the chaps currently scrapping it out in Nairobi, we might just wield sufficient credibility to persuade key governments to put pressure on Moi. But for this to work, it would have to be top secret because Moi can’t afford to be seen to be caving in to pressure from any quarter.

Practicalities:

Step One: Bring together a working group of say 5 to 10 eminent Kenyans – these would be people with a track record, but also who are known to be non-partisan with regards to the specificities of this particular debate. Preferably the beginnings of this initiative should be based wholly outside Kenya. This is because the situation in Kenya is so polarized, that the people involved are too close to it to be able to wield credibility.

Step Two: A Working Group of KENPEG should work out transitional arrangements – i.e. what happens between now and Elections 2002? This would include drafting a credible Interim Constitution (IC) under which the elections would be conducted; also deciding on what guarantees to offer Moi et al, which would encourage them to back the necessary changes (carrot and stick). We should cover all bases in a way that the initiative, once made public, can curry favour with most role-players, including the people and the international community.

Step Three: KENPEG would then make secret contact with friendly foreign governments – Britain, USA, France, Germany, SA, and any others that have influence in Nairobi, as well as Bretton Woods. To make the pitch, the Group would have to have developed concrete proposals and a viable vision, and to assure their audience of their bona fides and their seriousness.

Step Four: Secret contact would be made with Moi. The direction the talks take and Moi’s attitude would determine the course of the rest of the initiative. The Group would also make discrete overtures to certain key leaders of the business community, as well as to opposition politicians. But it should be noted that all this will be going on at the same time as the shenanigans currently surrounding the reform process and it will be necessary to keep a sharp eye on developments on the ground and factor them in as we go along.

I would repeat that for this initiative to work, secrecy would be of the utmost regard. The bona fides of the group must be above reproach. The whole initiative would be a long process (from now to election and on to a new final constitution). But if something doesn’t start now, Kenya is history – a view that is shared by many, all of whom seem to be paralyzed as to how to act.

If we selected the Group to be not only representative, but also to have a viable geographical spread, and with the aid of email to communicate and debate ideas, we can achieve much. What The Group would need to emphasize to itself is that this would be no ego trip; there is hard work ahead, most of which will have to be done away from the limelight; there are monumental risks as well, but there are also opportunities to start resolving our problems.

4. Tasks

Much needs to be done.

1. Transitional arrangements – To begin with, KENPEG needs to draw up transitional arrangements. This would involve putting in place mechanisms to ensure free and fair elections e.g. repeal of laws that inhibit free political activity; placing the management of KBC under an independent team of experts to ensure fair coverage of all viewpoints; constituting an independent multi-party task force to oversee the activities of the police and the provincial administration in the one year run up to the election, etc.
2. Drawing up an Interim Constitution – This should be a simple document whose aim would be to be a bridge between the old order and the new. Specifically, it should ensure free and fair elections to a new Parliament in 2002, which would in its first 24 months, act as a Constituent Assembly (CA). The IC would include a mechanism for constituting a Government of National Unity (GNU) post-election, which would have executive powers and would govern the country for a period of five years. Any party with a pre-agreed percentage of the vote in the CA would be entitled to respresentation in the GNU on a proportional basis. Separation of powers, the powers of a GNU presidency, etc would also be clearly defined in the IC.
3. When KENPEG has all its powers and proposals in order, initial discrete approaches would be made to friendly foreign governments offering a way out of the current quagmire. Britain would obviously play a key role, as would the US. South Africa might also be able to make a contribution given its own recent experience with constitution making and also its emerging role as a regional power. The reason for involving foreign governments is that experience shows that Moi and KANU do not change of their own accord or at the behest of their people alone. The IMF and World Bank would also be made discretely aware of what was being considered, as would the UN at an appropriate level. The idea is to ensure that our audience recognizes that this may well be the last chance to arrive at a peaceful resolution of the crisis in Kenya. But this all needs to be managed very cautiously. It should be remembered that time is of the essence, and so we should have concrete deadlines and stick to them.
4. Once all our ducks are lined up, KENPEG would make initial contact with Moi (probably through Head of Civil Service, Leakey, as I am already in touch with him following my letter to Moi last December). Again, this will be secret diplomacy. Moi must be assured that we are not working with any of the forces he perceives to be against him. We must make it clear that this is an independent initiative for the good of the country. Jus at the point we make the initial contact, it would help if we got a loud hint coming from the US Embassy or the British High Commission that they endorse what is afoot – again remembering that we have to carefully balance the carrot and stick. We should explain to Moi that he will get what he has been looking for – a constitution drafted by Parliament – only difference being that the final constitution will be drawn up by a CA elected for that purpose, and not by a group of MPs who most of the time don’t know if they are coming or going. If Moi is agreeable, he should be able to appoint a couple of negotiators to agree with KENPEG on transitional arrangements. He would also be appraised on the substance of the IC and be invited to comment, though we should be cautious not to have the whole process scuttled again. Most of the IC should not be negotiable once initially drafted because if it is open for debate, it shall be watered down into a shadow of itself.
5. Once Moi is on board, civil society and all role-players would be invited to agree on a set of constitutional principles which would form the basis of the new final constitution and from which the CA cannot depart. This is the point at which civil society can input into the process. Of course they will be free to lobby the CA at every step of the 24- month constitution drafting exercise.

5. Monitoring

This whole process will need to be carefully monitored including by the international community, especially the friendly foreign governments we shall have contacted. They will be needed to offer relevant guarantees – to Moi that whatever agreement regarding his safety post-retirement will be honoured, and to KENPEG that agreements reached with Moi and the government regarding transitional arrangements, The IC, GNU and CA will be honoured in good faith.

For this to work, it will involved all the brains we can master. This is just an initial suggestion. If and once KENPEG is constituted, we shall be able to take the process forward in an inclusive way.

Please let me have your comments soonest. I need not point out that if this matter is to bear any fruit, it must be handled with the utmost discretion.

Thank you,

Njonjo Mue

04 February 2000