14 January 2013

Kenya: CIC Chairman Speaks All Things Constitutional

Charles Nyachae is the chairperson of the Commission for the Implementation of the Constitution.

With over 26 years of law practice, he has been intensely involved in civil society reform programmes including serving as Chairman of the Council of the International Commission of Jurists, and of the Council of the Law Society of Kenya. Last week he appeared on the newly launched KissTV primetime news JSO @ 7 hosted by Anchor John Sibi Okumu. Here is the transcribed interview by Star reporter Henry Kibira.

You are the chairman for the implementation of the Constitution established in section five of the sixth schedule of our new constitution promulgated in the year 2010:

In thinking about interviewing you, I was very much put in mind for the late Martin Shikuku who ended his days with the reputation of being the people's watchman, but when history books are written it may well be that he was crying wolf, shouting, whining, complaining, but at the end of the day the robbers still got him and stole the goodies, is that an unkind comparison?

I guess history will judge whether it's an accurate comparison, but I want to suggest that the principle difference between what Mr Shikuku sought to do, God rest his soul, is that we are doing this as an institution.

This is an institution that is established by the Constitution and it's a constitution by the people of Kenya, as opposed to an individual. I think Mr Shikuku and a few other people did their bit to the best that they could in the circumstances that were obtaining at the time.

So what would you suggest has institutionalised your activities, I know reading the constitution, which I haven't, you'll have, the commission shall include persons with experience in public administration, human rights and government, and it will consist of a chairperson and eight other members, we only hear you on a day-to-day basis, where are the eight other members?

The eight other members are doing all the work, its just that the law says that the chair will be the spokesperson for the commission. But the actual work, there is nothing that the chair says out there which is not the collective position of all the nine members, including the chair.

But let me tell you something, now that you've mentioned Mr Shikuku in the context of the role of this commission; early last year I had the good fortune to spend a little bit of time with the late honourable Shikuku, and there is one thing he said to me in relation to the work that we are doing.

He said to me that the Lancaster Constitution was not such a bad document, but we made one fatal mistake, we forgot to include a provision for its own protection, and he said to me the job that you now have is precisely what we omitted in 1963, you have an institutional job to oversee the protection of that constitution and that is what the people of Kenya will hold you, as well as history will hold you to account for. So that institutional aspect, I think is really what the big difference is.

Perhaps it is the fault of the media. It constantly reports about you disagreeing with somebody like the Attorney General with whom you are meant to be working in tandem, people are complaining and you are switching on the red light, that there is no follow up in the public perception...

Three things; one, what comes out through the media and in the public arena in respect of our work, probably at the very most represents 20 per cent of what we do, I think the media is interested in what is contentious, what requires clarification as opposed to the day-to-day work that we are doing all the time.

The second point is that the issues that come out in the media and which appear to be contentious is the point at which we are in danger of going wrong, and therefore because we are in danger of going wrong and there are various institutions that the constitution has given various roles to play.

We as the commission have this oversight role, so of course we must point out when and where we think that we are going wrong, if for example the executive is doing something that is inconsistent with the constitution, it's our mandate to take issue with that.

I take your point entirely Mr Nyachae, but nothing happens thereafter...

Plenty happens, I will give you the best example. When the very first major public statement that CIC issued was when the president purported to make appointments of constitutional offices in a manner that was inconsistent with the constitution.

I am not saying that he rested purely because of CIC, but CIC did take a strong position on the matter to defend the constitution and the president did back down.

I would say Mr Nyachae that one of the codes of political conduct now in the first years of our independence and the first decades of our independence, the idea was to always change the constitution.

They used to make it more draconian, make it more restrictive and that they said we've changed the constitution, that is what we are doing.

It seems to me that having promulgated the new constitution, the master plan is to ignore the constitution, to say, chiefs, the constitution says we might not have chiefs but don't be sad, you will keep your jobs.

That is the politician standing up at the market place and saying that. We want devolved government, but we are setting in appointments to make sure that it's business as usual, business as usual over the last 40 years.

After the people of Kenya adopted the constitution and the president promulgated the constitution on behalf of the people and then institutions including CIC began their constitutional role of overseeing the process of implementation.

It then dawned on me a number of people and institutions and offices had a vested interest and continue to have a vested interest in the status quo. This constitution has passed, its seriously going to undermine our comfort zone, its seriously going to undermine the benefits that we have derived from the old constitutional order.

And they therefore embarked on undermining the process of implementing it. Some of the people who are most viciously undermining the process of implementing the constitution were actually people who were out there in the forefront campaigning on a Yes platform in the lead up to the referendum.

But I guess its only after the constitution came into place and they then realised that it is actually a transformative, a radical document that they are now trying to claw back, and I don't think we should be surprised by that.

It's individuals and groups who have vested interests and would do everything to try and maintain the status quo or indeed take us back to the old constitutional order.

Look at a document such as this; the Constitutional of Kenya 2010, it defines your job description. But when we hear that Mr Nyachae is petitioning the president, when you got the job, who called you, having vetted you, and asked you and found you to be the person most opposite to carry out this particular job, who actually says you are not honouring your key performance indices. Like the rest of us assumed you are not doing your job properly...

Ultimately, the person who will say whether or not I am delivering on the job that I was given to do, is not the president, it is the people of Kenya.

That is rhetoric, the people of Kenya maybe myself included have not gone through this document with the truth com to know the provisions, and they have no legal background. You are a lawyer and you have experience in administration and human rights and government, and I don't...

I think that is a cynical view, because the people of Kenya adopted that constitution.

Perhaps unknowingly, because they adopted it as a desire for change, we don't want this, what are you offering, I don't like the green book, give me the black book...

The very first words in the constitution, the preamble to the constitution....We the people......

Sounds wonderful, at the end of the day when the process doesn't go smoothly, I risk losing my life in certain circumstances. the stakes are high, I am not being cynical for its own sake, I am trying to ask you to really show me and through me our public that you are putting in place structures which will make me feel safer this time round than I did in 2007/8 December 2007 to May 2008.

Absolutely, without a doubt, as long as we use that constitution as the reference point, as the benchmark. And we are talking about both the letter and the spirit of that constitution, and that is why when it is necessary the commission will stand up to any office or organ, be it the president, cabinet or parliament,but we will only do so on the strength of that document and on the complete belief that that document represents the sovereign will of the people of Kenya to whom we are ultimately answerable.

Do you as a lawyer yourself see any instances where this document in itself might be flawed where the founding fathers and mothers thought it through, but they didn't quite think it through enough and that is why you are having the problems you are having, if at all.

I don't see that as as problem for the very simple reason that the constitution itself provides a mechanism for how to deal with that. And that mechanism is the role of the judiciary, and in particular the Supreme Court.

And we have of necessity, a belief or an acceptance that the constitution means what the court says it does, I will give you an example, recently the Supreme Court gave an advisory opinion on the Article that deals with the not more than 2/3 gender issue in so far as the National Assembly and the Senate are concerned.

If you are to ask me as an individual, I was more persuaded by the opinion of the Chief Justice which was a minority opinion, but from where I see it and as a lawyer, I accept that the majority opinion of the Supreme Court is the law, whether I myself am persuaded by it or not, so ultimately, if there is anything in the constitution that requires interpretation, that is the role of the Court.

As one might do. The American Constitution, we all hear it was written whenever it was and to this day people are still trying to interprate what it says.

That's the nature of constitutions. If you take the example of the US Supreme Court. From time to time there have been landmark rulings or opinions given by it. The supreme court is also sensitive to the public and the changing social economic and political dynamics.

So Mr Nyachae you are saying in a nutshell as long as you and your committee of honourable persons are here, we have nothing to fear?

I am saying more than that, I am saying that all the institutions that are established by the constitution, should come together. Each needs to do two things, one to do its bit in terms of what the constitution mandates it and two to maintain fidelity to the constitution- not just us, its also the judiciary, its every single organ. If you are talking elections, it's the IEBC.

Your managerial style is suspect, it is combative, its assertive; couldn't you relent and go back and be pro-active and sort of have closed door meetings with your friends and then come out with some sort of consensus. Comment.

You are absolutely wrong, I am not combative, I will say two things, one, any time you see me or CIC speaking out there , that only represents a small proportion of the work that we do, say maybe 20 per cent is what will be contentious out there, and the point is we don't create the contention, the contention comes about because other individuals and state organs are fighting against the constitution.

By the time we come out and speak on these issues, we have engaged verbally, we have engaged in correspondence, it's just that there are forces that seek to derail the process.

We the people, what is our role in this? Perhaps we are not entirely aware of?

The most important thing for the people to remember is that this is their constitution. Article one of the constitution talks about the sovereignty of the people, and I have referred you to the preamble.

And having realised that there are powerful vested interests in derailing or delaying the process of implementation, the people must ultimately retain the necessary vigilance.

I believe myself that if it wasn't the people remaining very vigilant and expressing themselves in whatever way that they do, up to this point I don't think we would even have made the advances we have made in so far as the implementation of the constitution is concerned. So the people, if they still believe that that constitution, if fully implemented will make a difference to their lives, must in whatever manner that is legitimate whether it is through their elected representatives, through the media, at the localised levels, they must continue to remain vigilant as far as implementation is concerned.

They must continue to insist that their constitution must be implemented with complete fidelity. So the people's role is absolutely crucial in this process.

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