LAPA Fellow Christina Murray to serve on Kenyan constitutional review committee

Chosen as one of three foreigners on the new Committee of Experts

On March 23,  Christina Murray was sworn in by the Chief Justice of Kenya as one of three foreigners to serve on the new Committee of Experts established to continue the review of the Kenya constitution. The 11-member committee consists of nine voting members: six Kenyans chosen by the Kenyan Parliament and three foreign experts chosen by the Parliament from a short list submitted to it by the Panel of Eminent African Personalities headed by Kofi Annan; the Kenyan Attorney General; and the Director of the Committee. The other two foreigners on the Committee are also both African constitutional lawyers: Prof Frederick Ssempebwa from Uganda and Dr Chaloka Beyani from Zambia.

The role of the Committee of Experts is set out in the Constitution of Kenya Review Act of 2008. It is to ‘facilitate the completion of the review of the Constitution of Kenya’. The Act sets a timetable of a a year. Kenyans hope to have a new constitution before the next president elections scheduled for 2012.

The process will clearly not be easy. This new initiative is one of the mechanisms agreed to after the violence that followed the 2008 presidential election in which over 1,000 people were killed. Between 2000 and 2005 the Constitution of Kenya Review Commission and its successor, the National Constitutional Conference, engaged in a process of constitutional review with a massive public participation campaign. The Constitution that was produced in this process sought, among other things, to constrain executive power. However, the version finally put to the people in a referendum in 2005 had been altered by the political elites to restore the extensive powers of the President, among other things. This contributed to its rejection in the referendum and, perhaps, to the post-electoral violence in 2008. The new process will have an element of public participation but it is predominantly in the hands of politicians. This in itself is a challenge as it runs counter to the expectations that many Kenyans have of a people-driven process.

The Committee of Experts is to produce a draft that includes matters on which there is already agreement and makes proposals for the resolution of the contentious issues. Then, it is up to the politicians to reach an agreement on a final version. They will, of course, be mindful of the fact that the constitution cannot come into force until it has been approved in a referendum.