Comment on the Bomas Draft, the National Constitutional Conference and the Law

By Winluck Wahiu

Principles of Review Process

The core principles of the review process were agreed in diverse stakeholder fora and partly reduced through the series of laws that culminated after two revisions and two amendments into the Constitution of Kenya Review Act. 2001 (Cap 3A). These principles were the following:

The review process would be people-centered and demand led.

It would be independent from politics and insulated from external pressure through independent tenured commissioners and financing.
Collation of popular views would be the baseline for the new constitution. The views would be collated from individuals and representative organizations.

The final constitution would be liberal and uphold rule of law, human rights, democracy, separation of powers, secularism and citizenship.

Cap 3A was meant to provide only the institutional infrastructure that would permit all of the above. The debate over process was always tied to the debate over substantive outcomes.


Are the National Constitutional Conference and the Bomas Draft Constitution Paths to legitimacy under the review laws?

What was the objective of cap3A?

In terms of the review principle, Cap 3A serves as a bridge between principle and text of the new constitution. It cannot serve as the bridge to the new constitution since that constitution must be made as an expression of an absolute constitutional right independently of Cap 3A and Sections 47[1] and 123[2] of the existing constitution, although the statute can be a road map.

Cap 3A not the only legal means to a negotiated text

The approval of a national constitutional conference[3] to study the report of a statutory commission was only one of the options facing constitutional reformers. A constituency assembly could have been created.

An interim constitution could have been adopted. The commission could have been entrenched in the constitution together with the NCC. None of these other legal options was chosen. But the NCC was a deliberate choice.

The choice of this process was tied to the debate over legitimacy and included aspects of legitimization of key proposals as well as the procedural mechanisms themselves. The commission and its processes eventually unfolded as parliamentary mechanisms.

When the Njoya case established that parliament could not make a new constitution, that prohibition included ipso facto overreaching parliamentary mechanisms.

CKRC was ultimately a statutory administrative mechanism as was the NCC, both tasked by parliament in terms of statute to create a constitution for parliamentary approval.

This is clear from the Constitution of Kenya Review Act, 1997[5] whose preamble stated it was an ‘Act of Parliament to facilitate review of the Constitution by the people of Kenya and its eventual alteration by Parliament; to provide for the establishment, powers and functions of the Commission, District Constitutional Forums and the National Consultative Forum and connected purpose.”

The Review Act,1998 on the other hand proclaimed its objective as an ‘Act of Parliament to facilitate review of the Constitution by the people and its eventual alteration by Parliament; to provide for the establishment, powers and functions of the Commission and the national Conference and connected purposes’.

The district forums and the national consultative forum changed in this revision.

There aren’t substantive differences between this 1998 Act after its revision in 2001 to become the parent Cap 3A.

Both the pre-Bomas and the Bomas processes are the result of legal flaws

The same legal factors behind the original review laws continued to bedevil the review process from 2001 to 2005. Indeed the flaws in the laws have continued to be mutually reinforcing culminating in an impasse. In all the laws, the president appointed a commission, which collated views and wrote a first text of the constitution.

The first text was then reviewed by a body formed by the same commission in terms of representation maps set by a statute. The commission then provided the expertise to this body to review its text.

The first reveals gaps between its provisions and collated views, some substantial. The first text is different from the second text that was adopted by the conference, and the conference was found by the courts to be unrepresentative and without proper mandate to make the constitution.

Both the first and second texts are often criticized for their obstacles to stable and effective government. In order to circumvent the legal flaws giving rise to these texts, it is now proposed to use the referendum mechanism, albeit expanded, within the same law.

Manipulation of the law aimed at influencing outcome of Bomas and referendum

In the Review Act,1997 the functions of the Bomas talks were defined. The forum was to study the report of the CKRC together with the draft Bill and to debate, amend and adopt the proposals therein subject to important decisions being arrived at on the basis of a 2/3rds majority of the members if there was no unanimity.

The majority appears to apply to all the members in plenary. In the Review Act,1998, the functions of amending and adopting were omitted.

Moreover, important decisions were to be arrived at by a simple majority of the members present.

The revised Review Act 1998 became the parent Cap 3A after 2000. Bomas was retained in the revision with new qualifications on its composition and quorum fixed at one half of the members.

Questions were to be determined by a simple majority of members present and voting.

However, there was a new provision that in case of an inclusion proposal, it should be supported by 2/3rds vote of all members. If the inclusion proposal was opposed by more than 1/3rd of all members, the vote could be repeated. If the question was not agreed, it was to be submitted referendum at a later date.

In an amendment to Cap 3A in 2001, the Bomas talks along with the other organs were directed to be accountable to the people of Kenya and respect transparency and human rights.

However, the Amendment Review Act of 2001 retained the provisions of Cap 3A regarding voting at Bomas and the referendum and are therefore also overtaken by the court decisions.

In conclusion, the review laws initially provided for the national forum and deliberately spelt out their functions and powers, then subsequently omitted these functions and powers after 2000, leaving the CKRC to make the important determinations.

The CKRC used the statutory vacuum to legitimize predetermined issues and force consensus by applying the simple majority rule to members present and voting a committee stages as the fora to debate and settle the constitutional proposals.

When the outcome of Bomas was cont clear because two versions of the draft Bill were introduce, the CKRCA held an exercise to ‘verify and confirm’ what is now touted as the Bomas Draft Constitution.

The CKRC did not have this power under Cap 3A to verify and confirm what Bomas decided, and from the reading of the 1997 statute, it was Bomas that was to verify and confirm what CKRC reported and put into the draft bill.

What were the standards for the Bomas Draft Constitution?

The standards were not fixed by Cap. 3A. However, Cap 3A required that the first text of the constitution be based on collated views. The standards for the second constitution text appear to be whatever the CKRC decided during its confirmation and verification after the close of Bomas in March 2005.

This is not subject to the statutory provisions. Under the law, Bomas no longer had the inherent power to revise the draft before it, and to seek clarifications and order additional inquiries, but relied entirely on the CKRC for its questions and methodology.

What were the standards for the Bomas talks?

After the revision in 2000, the law did not specify functions and powers of Bomas talks. These have been done post facto in the Wakarenga and Njoya decisions on the basis of constitutional standards for a) the power and functions of a constituent assembly, b) the universal right of referendum.

Njoya delivered on March 25, 2004 found that Bomas was not representative and that it could not itself have the power to make the constitution, since it was not a constituent assembly, and at any rate, that power was reserved to the people acting in a plebiscite.

Contrary to this, the impact of the several amendments and revisions to the review law as to increase the powers the functions of the statutory organs of control, but not the content of democratic control by the people.

The actual process of discussion at the NCC was determined by broader political changes and bellicosity dissent, although in principle it was to be insulated from such practices.

It was not neutral. But the reason why Wakarega and Njoya are important is because they were not concerned with whether Cap 3A and Bomas were appropriate or inappropriate, but whether they were constitutional and adhered to established constitutional principles.

Furthermore, the unconstitutionality was not based merely on failure to meet constitutional standards, but cardinal standards with deeply foundational or organic value – that of the sovereignty of the people.

The role of the NCC in creating an organic law was not justified by Cap 3A which is silent on the matter. The role was an interpretation of the CKRC and Bomas, which was faulted by the courts. If Cap 3A vested that power, it would be unconstitutional.

Essentially, the judicial/legal reasoning reduces the construed status of the Bomas draft constitution as an alternative constitution.



Referendum Right and the Bomas Constitution: the Final path to Legitimacy?

Post Bomas amendments to Cap 3A and the so-called Consensus Act propose to incorporate the right to referendum into the review process. However, this is not a statutory right but a constitutional one based on the now affirmed doctrine of the sovereignty of the people.

What the review law could achieve in terms of this right is an infrastructure for its implementation.

That infrastructure must then meet constitutional standards of independence, timing, neutrality of facilitator, universality, assurance of constitutional validity and broad stakeholder legitimization.

The Bomas draft that has now been ‘certified’ by the CKRC is the residue of the faulty law and Bomas processes, which did not even arrive at a consensus. Basing the right of referendum on the documented outcome of this process will continue to perpetuate all the residual flows.

That the Bomas certified draft as a referendum question is to be accredited by a parliamentary committee (a non neutral facilitator) ahead of the referendum infringes on the notion of political neutrality of referendum question, which will consequently be merely no more than an endorsement or rejection of a political program.

The right to referendum exists in the constitution and cannot be written out of the constitution. It is a right of sovereignty to establish a constitution and republic.

Cap 3A was and is a mechanism for a crafting process, based on collation of views and ultimately, parliamentary certification.

That philosophy is continuously present in the review laws. Cap 3A had self imposed limits even before the limits imposed by the courts to safeguard the people’s rights.

This is why the referendum should not be tied to outcomes of Cap 3A. 1st, it is absolute right. Whether or not consensus was reached at Bomas, the right was and is still established and entrenched.

Second , it is a right independence of Cap 3A and cannot be inserted at the tail end of this flawed process. Moreover, both the Bomas talks and drafts are results that arise from their statutory antecedents and the existing provisions of the review law. As a result, bringing in the referendum right as a universal validation action in Cap 3A will amount to a post facto ratification of Bomas and Cap 3A.

That is not the meaning of the right in the context of constitution making. It is not to correct statutory and process based errors but to agree to a new constitution freely and transparently, without coercion and on the basis of equality.

There are no legal circumstances that justify the draft constitution that emerged from Bomas and was later ‘certified’ by the CKRC, a power that the CKRCA does not have under the law, to exercise over a document produced from a flawed legal process whose methodology was not defined by the parent law, or any other law.

Nor should the right to referendum be used merely to ratify a fait accompli.

[1] Under Section 47,parliament can amend the constitution.

[2] Under Section 123, amendment powers are framed by the definitions.

[3] In the Review Act, 1997, the conference was simply termed as a national forum. The terminology of national constitutional conference emerged in the revised review Act,2001 when the idea of a national constituent assembly was rejected by parliament and the government.

[4] Timothy Njoya and others vs. Attorney General and others, HCCCNo.82 of 2004. the majority decision was found that parliament had no power under the constitution to make a new constitution and that this right was reserved by virtue of Section 1 to the sovereignty of the people.

[5] Act No.13 of 1997 assented on 7 November 1997 and gazetted on 30 December 1998.

[6] Act No.6 of 1998 which commenced on 25 January 1999.

[7] Published on September 30, 2002

[8] Published after March 15,2004

[9] Section 16A

[10] Section 27 (1)

[11] Section 27 (3)

[12] Section 27 (2) and (4) respectively.

[13] Section 27 (5).

[14] This reference to a conditional referendum was struck down in the Njoya decision.

[15] Section 5 of the Amendment Review Act, 2001