Kyama Mugambi is a pastor of a local assembly. Here, he shares with us the issues he is contending with regarding the proposed draft constitution set for a national referendum August 4th 2010. See his blog, "Radical Impact" HERE.

This is an important debate that is getting rather emotive right now. R-Day is approaching. There are many passionate, well-intentioned statements out there some of which are well articulated on both sides but others that are condescending at best and alarmist at worst.
I am wrestling with the debate personally and here’s why.

Where I’m coming from : I have grown up wanting a new constitution. I first heard about it in ’89. I celebrated the repeal of section 2a in 92. I ducked stones in town and wiped tear gas tears off my eyes many times in that same season. Ok, I wasn’t beaten by cops or smoked out of a church, but through the seasons of my life – high school, college, work, marriage and kids – I have been wanting a new version of this important document – for me but more for my kids and grandkids.

Here’s the other thing. After several false starts, substantive efforts and even a failed referendum – we finally have a fairly workable draft. In fact contrary to what many pundits, critics, scholars and barristers have said – In my opinion the Experts have given it a pretty good shot this time round. [Click here to download the whole thing from the experts, Click Here to download the draft to be voted on].

Here are my issues about the draft we are likely to vote on soon –

Caveat: I promise to bare my heart out on this one, here’s what I want you to promise – that you will read for yourself the sections and chapters I have issues with to form your own opinion. This is mine. I will also come out clean and say I am a Christian and my faith influences my position.

Back to the Draft: After the preliminaries, then talking about what the constitution is to Kenya and who a Kenyan is – the constitution gets to the crux of the matter.

It articulates, and I agree that, fundamentally, all Kenyans are equal regardless. It does not matter what race, ethnicity, gender, ability or disability – we are Kenyans and we are equal. This constitution is the law above all Kenyan laws that is supposed to guarantee that very concept. I connect with that as a Christian. Why? Because we are equal because we all were created in God’s image. We are also equal in the sense that we all are fallen and sinful. That is part of the reason why we need human laws like this one we are discussing.

In particular, chapter 4, Section 19 and 20 on the bill of rights is supposed to inform, explain and guarantee that concept. That is the spirit of this draft.

But: Hey wait a minute – Equal? No, not exactly. After discussing the way the bill of rights is supposed to work and the usual limitations, an exception is made in this same draft for those who apply the Muslim law. Read it for yourself Chapter 4 section 24, part 4.

Here is the argument, because of the inclusion of a separate legal system, the Kadhi court system, a special provision has to be made that says that – “the provisions of equality shall be qualified to the extent … necessary for the application of Muslim law…”. In effect what this says to me is that all Kenyans are equal, except Muslims who are strictly applying their law in their own personal matters. The Muslim law is regulated through the Muslim court system otherwise known as Kadhi court as outlined in a small portion.

How is it that a subsidiary court, that serves the interests of a part of our population, and that addresses personal matters can affect such a fundamental issue of equality among all we Kenyans? I know, I know, we have always had Kadhi courts since independence. However is that a good reason to keep them? We had section 2A of the Constitution since the 60’s - was that good reason to keep it? We’ve had 999 year land leases since waaay before independence, is that good reason to keep them?

I have nothing against Muslims. I have friends, fellow citizens, relatives who, like most are noble, peace loving Kenyans. I also think think that Muslims may have some unique matters that might be well served in a ‘religion-specific’ court. How about we make a provision for them in a separate law that is servant to [the document that articulates our equality] the constitution and not within the constitution itself. In addition to this, whenever you say “everyone is equal, except…” then what you are really saying is that there are times, or reasons when we are not really equal – if that really has to be, then let it not be because of the practice of one religion above others – ie. The practice of Muslim law in this country.

My thoughts – get rid of that little bit from Chapter 4 section 24, part 4. Then move the special Muslim court system out of the constitution into a separate act which comes under the constitution. After that we can have a chat about who and how we will fund this special court that serves a part of the esteemed citizenry of this Nation.

Equality Part 2: Again about equality. Section 26 of chapter 4 [page 23 AG draft]. Everyone has an equal right to life. God is the giver of life and everyone has a right to it from the Giver. Even the unborn child. Section 26 is a great section in that it articulates this point. The problem for me is that the last 8 words of that section 26 unsay what has just been said. It says that “abortion is NOT permitted…. Unless it is permitted by any other written law.”

Problem 1: That sounds contradictory to my mind. Either it is permitted or not permitted by law… not both. Perhaps that is legalise for me but…

Problem 2: With the many agendas that surround our politics both locally and internationally, it is possible for our local laws and governance to be affected such that this “any other written law” is actually passed by our August House. As it is word on the street is that there is a bill waiting in the wings about this issue getting ready for discussion.

My recommendation – get rid of those last 8 words of section 26.

It is a good draft. It is not perfect but it is for the most part palatable. I really want to vote Yes. And my prayer is for our Nation to get to the referendum united with a Yes vote.

Can I with a clear conscience vote for a constitution that promises equality but opens up some possibility for this equality to be challenged?

Will I be doing a disservice to my nation by denying a much awaited, well put together draft such as the one we have?

What do you think?

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