A YES-YES REFERENDUM NOT PROSECUTIONS OF PEV SUSPECTS THE ROUTE TO KENYA’S NATIONAL SALVATION: A COMMUNIQUE TO THE NATION ON THE 19TH SABA SABA.

CYPRIAN NYAMWAMU

July 7, 2009 marks the 19th Saba-Saba. Saba Saba is the day to reflect on the reform Agenda and since 1997; NCEC has acted as the custodian of this important day in the reform agenda calendar. On this Saba Saba day I wish to share a perspective I have taken a year and half to develop. I am of the conviction that Kenya can only move forward if we have a sincere conversation on the future survival of the nation and its prosperity. We should lead ourselves out of the confusion and suffering that PNU and ODM have sunk us into. We can not get out of a perilous situation by being led by the same people who authored our downfall and by using the same methods we used to plunge into the conflict and slow disintegration of the nation that we are in today. Our nation should come to terms that PNU and ODM ran ethnic campaigns in 2007 and therefore committed the original sin. I do not agree that Kenya can rescue and renew itself by using mechanisms like the local tribunal or The Hague (ICC), the National Cohesion Commission, boundaries commission, and most of the placebo mechanisms that are being touted in the republic today. I even find the Obama-Annan recommendations ill informed. In fact they will not work.

We made a major mistake last year when we agreed to give the PNU and ODM a 5-Year license to plunder the nation. The National Convention Executive Council (NCEC) recommended to the Civil society Congress and the Annan mediation process that Kenya should have a transitional arrangement for only 2 years after which a fresh election would be conducted for Kenyans to elect a clean, lean, effective, accountable and responsive (CLEAR) government. It is only such a government that can facilitate reforms, reconstruction and reconciliation.

The Americans and the Europeans wanted coalition government for 5 years. Some Ambassadors started to act as if they were more interested in Kenya’s success more than Kenyans themselves. They even said that the size of the government was not important. On forming a bloated cabinet that is top-heavy with corrupt politicians, we were not going to have an accountable, effective and responsive government and consequently we logically resigned ourselves to five years of plunder, corruption, poverty, elite enrichment and missed opportunity for reforms, reconstruction and reconciliation. The National Accord government took away the incentives for reforms. That is why the reform agenda is stuck in the mud.
Ambassador Johnnie Carson’s proposals are therefore unrealistic and un-researched. The Grand coalition shall not deliver on the National Accord next year or indeed in the coming years. Why? The simple explanation is that the assumptions of the National Accord are simply flawed. The Assumptions of the National Accord are that; Kenya is a cohesive nation, with functioning institutions, and that there is a leadership called “Principals” that supersedes ethnicity, the patronage system and that overrides their corrupt parties and their kitchen cabinets. It is also assumed that there exists a leadership in civil society and in the religious and business and professional sectors that has the ability to seriously sanction the thugs who “trouble the Principals” in their pursuit of national interest. These assumptions are false. The two principals do not care about the country and its future. The only thing they care about is their wealth and power. The maneuvers we see in Parliament, in their Political Parties, cabinet and in the countryside are all about their wealth and power. The APRM report that preceded the National Accord made it clear what Kenya’s Achilles heels are and specifically found out that Kenya does not have a transformative leadership.

When the Kofi Annan Foundation invited me to represent the National Civil society Congress in Geneva at a forum to assess how far Kenya had come in implementing the National Accord, I kept away. I asked myself this question: What can the parley in Geneva achieve for Kenya without a cohesive democratic movement at home that shall take the responsibility for leading Kenya to peace, justice, cohesion and progress? It was my view then and it still is that we are like a person who is in denial trying to be superstitious about reforms and ending impunity in Kenya. So we do not interrogate the assumptions upon which we want to carry out reforms and transform the nation. So we keep doing a thing or two hoping that the Lord will touch Kibaki and Raila to change their motives of power and wealth and work for the national interest. It is the reason we have failed to get a new constitution for twenty years and it is the attitude that will finally lead us to greater suffering.

I am of the view that we should set in place a national democratic Process with the following components;
A Democratic Dialogue Facilitator (DDF) should be set up to spearhead the process. A Multi-sectoral Council in the form of a National Convention of Kenyans who have demonstrated their steward credentials would be competent to play this role.
Center line issues and principles should be articulated and agreed upon. We should outline the expected outcomes of the process upfront so that every one is assured that they will not be destroyed and shattered; issues such as how land should be reformed to address issues of land ownership and historical injustices should be addressed upfront by the DDF. We must assure the current ruling class that they will not face assured destruction when it is found through a TJRC process that they have sponsored the violation of rights and economic crimes in the past. If we do not assure these guys that the worst they shall suffer is to be denied the right to hold public office, we will never make progress because they will never let Kenya reform and be free. We will never be a free nation. The fact that we never dealt with the Kenyatta and Moi years of atrocities and violations has led to the current situation where Moi and the Kenyatta era politicians are the ones in control of the state and the future of Kenya. If we do not negotiate with them, this country will never be transformed and it will never know peace, justice nor prosperity. In Poland, the Solidarity movement had to assure the then communist era President that his future was secure for him to initiate talks with the Solidarity Movement. Right now Kenya’s future is important than get some ten or twenty guys jailed or hanged especially when these guys are in office today. Democratic transitions have never been secured using the Kenyan model that has failed for twenty years. Zimbabwe seems to do better because of gaining credible advice from experts in democratic transition management which seems to lack in Kenya.

Identifying the Referee of the negotiations is necessary. Without a competent team that acts as referee, parliament, the executive and tribunals shall lead the country into adversarial contests that will never give Kenya a chance to dialogue.

Audit of skills for the work of the National Democratic process is important so that where there is need for international expertise, this should be planned for.

The referees and the DDF should begin by outlining the fears of the powerful interests and aspirations and grievances of the excluded citizens and citizens’ groups including ethnic groups.
The DDF should Schedule the process of moving forward so that the what and the How is planned appropriately. For me the what entails five tasks in this order;
a)Constitution reforms process
b)A fresh elections
c)TJRC
d)Institutional reforms
e)Delivery on the development agenda for Kenya’s prosperity under a legitimate government.

Once the schedule of work is agreed upon, laying the negotiating table that is inclusive becomes the next important step to ensure that the schedule work is delivered upon. The constitution review process should be moved from the strangle-hold of Parliament to a Constituent Assembly or a Multi-sectoral forum. The reason we failed in 2005 is because parliament controlled the content and process of review. What have we improved on in this process? We have not improved the process but instead made it more elitist and exclusive to the guys in power. The ruling class has not intention to have a dialogue with the people of Kenya but to monopolize the state and the political process with a sense of entitlement that reeks of cynicism and contempt for the Kenyan nation. So long as the Committee of Experts is headed to handing over its work to parliament, this process shall expectedly turn awry and therefore fail. Should we wait until we fail to know this? How come we are a country that believes that the same people who drove Kenya into the hole shall pull us out of it?

The DDF must ensure that there is cessation of war- because wars are persistently raging;
Between the people and people
People and the state
State terrorism is evident all over Kenya

Insecurity threats posed by Kenya’s neighbours should also be factored into the National Democratic Process.

Financing the negotiations: Who pays for the National Democratic Project? Who pays for the work of the DDF, the referees, the Laid-table of negotiations; the activities, research and intellectual resources that shall go into the process? If it is the tax payers then the law should empower the DDF and the referees to access these resources in a manner that Parliament and the Executive do not use resources to stifle the reform agenda.

I am of the view that we should put aside the prosecution of post election perpetrators from the national Agenda for now. Kenya missed the opportunity to nail the guys who sponsored the crimes against humanity in the wake of the discredited 2007 presidential election when the ceasefire document junked electoral truth and electoral justice. The day the Kriegler Commission declared that we did not know who won the last election we reinforced the logic of the National Accord which was that we better have a government and restore peace rather than pursue the truth and justice for the victims. We went on to give the guys five years in office even as we did not know who had won the election. Where do we stand now to ask these guys to remove each other from power and dispatch bits of the gang that committed the original sin to a local tribunal and or to The Hague? We must as a nation craft a new Roadmap and end the syndrome of issuing one another with ultimatums that we know no one is going to respect. We must stop step down the demand activity and map out a strategy for enhancing the supply side of reforms, reconstructions and reconciliation.

We should know when we have missed an opportunity and be brutally honest with ourselves as a nation. Moi is still roaming the country unperturbed even with reports full in stores showing his regime perpetrated crimes against humanity for decades. I am clear in my mind that Kenya is a failing state that is captured by cynical interests that will rather all institutions collapse rather than them losing advantage to power and wealth. These are the men and women we want to give the opportunity to spearhead the process of transforming the state. With Wako, Ali, Saitoti, Muthaura and other high ranking officials remaining in office and the culture of impunity remaining entrenched in all facets of public life in Kenya; the Tribunal shenanigans shall at best be used to fertilize politics of succession and nothing more than that.

Kenya should instead proceed as follows;

a.Prepare two constitutional proposals and hold a YES-YES referendum next year. One of the drafts should establish a Parliament system of government and the other a Presidential system of government. As a nation, we should avoid the route of a hybrid system where we have an elected president and a Prime-minister who heads government or coordinates it. This proposal is only to ensure that the country does not fix its fundamental governance problem of lack of accountability, blurred separation of powers and weak checks and balances. The drafts should avoid all the policy issues that can be outlined in ordinary legislation or left to political party manifestos. These include issues such as chapters and provisions on culture, the environment and issues of reproductive health. Parliament should therefore be guided by the political parties to amend the Constitution of Kenya Review Act to provide for a YES-YES referendum to provide an opportunity for the nation to make a clear break with the current constitutional dispensation.

b.The Democratic Dialogue Facilitator (DDF) should ensure that a fresh election is held next year on the basis of the new constitution. All those who have been named in various reports since independence including the Mwangale, Akiwumi, Goldenberg, Anglo-leasing, Nyayo torture Chambers reports, the Ndung’u Land report, the PAC and PIC reports, the Artur brothers report, the Kriegler and the Waki reports (including those in the envelope) should not run be permitted to run in that election. At least Kenyans should be urged to reject these saboteurs who have hurt our nation for so long with impunity.

c.Upon the passage of a new constitution, Kenya should operationalize its Truth, justice and Reconciliation Commission next year so that we can bring to the surface the Truth about our past and document this truth so that we do not repeat this tragic and heinous legacy. Justice must be given to the victims who suffered violations and historical injustices must be addressed so that we come together as one nation as we move forward to the future. This is the only viable strategy to national cohesion and healing that Kenya needs more than anything else. As President Kagame advise recently

d.The new government should implement policies that address Kenya’s governance priorities outlined in the National Accord. Particularly, the new government should ensure that a progressive National Budget is prepared that ensures a 60% allocation to the development budget and 40% to the recurrent budget. These resources should be invested in the citizens to ensure that each of the regional governments delivers services to the people to address the regional inequalities, food poverty and lack of infrastructure and power that is required to revolutionize economic performance.

These steps are important to save the Kenyan nation from disintegrating. These assignments can be accomplished if a National Convention is convened by men and women of good will who enjoy wide respect among the people of Kenya. These men and women include the following Pheroze Nowrojee, Njeri Kabeberi, Mwalimu Mati, Muthoni Wanyeki, Kepta Ombati, Willy Mutunga, Betty Murungi, John Githongo, PLO Lumumba, Gladwell Otieno, Ann Njogu, Ndung’u Wainaina, Bethuel Kiplagat, Rev. Bishop Korir, Abdullahi Abdi, Yash Ghai, Mwambi Mwasaru, Hussein Khalid, Tirop Kitur, Paul Muite, Onyango Oloo, Kithure Kindiki, Khalif Khelefa, Gacheke Gachihi, Caro Ruto, Joshua Nyamori, Davinder Lamba, Duncan Okello, Maina Kiai, Rev. Timothy Njoya, Collins Odote, Okoiti Omtatah, Matunda Nyanchama, Hassan Omar, Vimal Shah among others.

The National Convention Assembly should see to it that all democratic forces participate in the process of delivering the National Democratic Agenda of ensuring democratic governance presided over by democratic leaders, establishing and ensuring democratic institutions and entrenching a democratic culture in Kenya. September this year is an appropriate time for convening the National Convention Assembly where in the words of our fallen comrade and Panafricanist Tajudeen Abdul-Raheem we may stop agonizing and start organizing seriously.

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Date: Mon, 6 Jul 2009 02:59:01 -0700 [07/06/2009 04:59:01 AM CDT]
From: orina Nyamwamu
Subject: SABA SABA 2009 MESSAGE