[In August 2001, as Kenya approached the historic transitional General Election of 2002 at which Daniel Moi was not expected to run after the expiry of his two terms, Njonjo Mue wrote a letter to Moi stating what must be done to guarantee a free and fair election, avoid violence, and assure a true transition from Moi to the people's choice. The letter was faxed directly to Moi at Harambee House and it was carried as an open letter by the People Newspaper of Sunday, September 2, 2001. ]
28 August 2001
H.E. Daniel Arap Moi
President of the Republic of Kenya
Office of the President
Dear Mr. President,
In the past two weeks, 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 in its favour. 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.
I refer to my letter to you of December 22, 1999, which I attach here for ease of reference. Mr. President, 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 blurred vision for our country.
At a glance, 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, the impending merger assumes critical importance to 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. Raila Odinga have played in barring the people from having any meaningful say in how they are to be governed.
It is an open secret that Mr. Odinga wishes to see a parliamentary system of government with himself as Prime Minister. Odinga is obviously entitled to his dreams. But the fact that the Parliamentary Select Committee on Constitutional Review which he chairs is dominated by Kanu-NDP apparatchiks remains in place does not augur well for the country. Nor does the fact that Odinga's lieutenant, Mbita MP Otieno Kajwang' has brought a notice of motion in Parliament 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 it 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 realize 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. And this brings me to the defeat of the KACA Bill. In my view, the principal lesson lesson to be learned from the experience is 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 to provide and forge true consensus. What's more, we must find new ways of truly involving the people in determining their own destiny. The sooner you start doing that, instead of wasting precious time and resources cobbling together untenable 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 in 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 an IPPG being sprung again on us under the pressure of an impending election and national interest being sacrificed on the altar of political expediency as has already happened once before.
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 number of constitutional principles upon which a new constitution shall be based, as well as drafting an interim constitution whose aim is to provide a framework for free and fair elections next year and the governance of the country during the 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, 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 eligible 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 multi-party board between now and the elections. Private media should 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 elections, 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 for 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 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 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 terminal 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 the tide. but it may just be enough for you to begin the laying of the foundation for 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 to go down the destructive path of divisive partisan politics that you have embarked upon in the company of turncoat politicians whose sole aim is to use the twilight of your presidency to propel themselves to power through manipulation rather than my election following a truly democratic process.
CC. Prof Yash Pal Ghai
Constitution of Kenya Review Commission.