Constitutional Referendum Part VII – Final Thoughts

The following are my notes from the Q&A session which proved to be quite entertaining.

– Kenyans are so verbose. Everyone was explicitly restricted to one question, but I can’t tell you how many times someone started off with a speech on how grateful they were about the workshop before raising “just three quick points.”

– Gay issues came up pretty frequently. Someone asked whether homosexuality is now legal since it is not explicitly banned in the constitution (some politicians have been tossing this around along with other inflammatory claims during the campaign process). The answer to this question was a bit unclear, but according to one panelist it was felt during the drafting process that there was no need to entrench a ban on homosexuality in the constitution to due privacy i.e. a constitution should not be legislating what consenting adults do in the privacy of their bedrooms and human rights concerns. And a brave young man who declared himself to be a member of some atheist forum (earned him some hisses) and a gay and lesbian alliance (earned him even louder hisses) wanted to know whether the constitution would allow gay marriage (there was now an uproar in the audience). To the moderator’s credit the crowd was asked to respect everyone’s views even if they disagree with them. The answer was no.

– A number of people asked about the amendment process. Amendments under the Wako/Draft will be very difficult – for those who are arguing that you will amend mbele (in the future) – (i) each amendment must be subjected to a referendum or collect 1 million signatures take to parliament, (ii) parliament will amend and then subject to referendum; or Parliament can amend with 2/3 majority…currently hard for parliament to get given the fact that most members barely attend.

– There were a number of references to the U.S. Someone pointed out the fact that marginalized groups who were not sitting at the table when the American constitution was drafted e.g. were still trying to establish their rights 200+ years later so we should be cautious about moving forward with a process that is not reflective of the wishes of Kenyans.

– Some folks proposed solutions to the zero sum game Kenyans find themselves including conducting a vote just on the so-called flawed 20% of the Wako draft.

– Some tealeaf reading: If the no wins – they will demand an election; if the yes wins – the No’s will demand an election or will gang-up and parliament will be brought to a standstill and vice versa.

– One guy called on the youth to not ask for affirmative action as if they are women. (he was promptly booed by the audience who thought he was being deragatory to women).

– There was all around confusion about the transitional provisions if the Yes side wins. No one was sure about the next steps.

– There was also a lot of concern about relying on the current Parliament to pass legislation operationalizing the Wako draft if it passes given their overall uselessness.

– Some guy (with lots of time on his hands apparently) asked whether we knew that there was a British law enacted on April 10, 1961 that could still be in place (he went into a lot of detail) that gives the Queen of England the power to amend or enact a new constitution, and wondered what the implications of this apparently conflict were. Everyone just laughed.

– A member of the Hawkers Consultative Forum (yes one exists) wondered what was the point of a new constitution anyway if our leaders cannot be relied upon to pay attention to issues affecting the poor and the marginalized.

– Someone cautioned those who are concerned about the waste of resources if the No side wins to think about the how the potential disaster inherent in moving forward with a flawed document.

– There were concerns raised about the Bill of Rights in Wako being declaration and no enforceable.

– There were several calls by audience members for a group that will forcefully and energetically articulate the needs of young Kenyans (we were characterized as sheep without a shepherd).

That’s it for now on the referendum. More to come when I’m back on the ground next week.