Berkley Center

Background: As part of the Religion, Conflict, and Peacebuilding Fellowship, Consuelo Amat interviewed Dr. Michael Chelogoy, deputy director of research, drafting, and technical support for Kenya's Committee of Experts on Constitutional Review (CoE). In the interview, Chelogoy describes the painstaking process through which the Committee of Experts went to capture Kenyans’ views on the constitutional reform. He also weighs in on the current debate over the qadi courts and the abortion clause.

Dr. Chelogoy, could you talk about the political context in Kenya while you were working to produce the draft constitution?

In 2008 we achieved a National Accord that paved the way for the ceasefire and the power-sharing agreement between President Mwai Kibaki and Prime Minister Raila Odinga. This coalition government occurred at a time of great instability, and it was especially frightening because ethnic and tribal tensions were running high, there was little faith in the rule of law, and economic equality could not be more appalling. As you might know, Kofi Annan and other high-level diplomats helped broker the ceasefire and power-sharing agreement, which turned into a document with four agenda items. The fourth agenda is our mission here at the Committee of Experts, as it deals with the long-term, root causes of the violence that swept us all in 2008 and that has loomed over us since Kenya became a country.

The Fourth Agenda seeks to address economic inequality, resource distribution, national cohesiveness, historical injustices, and land boundaries. The Committee of Experts would tackle these issues by reforming the legal framework through which all laws and policies are made. Keep in mind that it has been 20 years since we began the constitutional reform process, and there have only been failed attempts up to this point. This history prompted us to make the writing process this time as transparent and participatory as humanly possible.

Could you take me through this constitutional reform process?

First we were mandated to study past processes and to find ways to resolve the most contentious issues and address the reasons for so many failed attempts. We took past documents and harmonized them, but what we did not envision was that we would generate new contentious issues. On November 17, 2009 we submitted the harmonized version of the proposed constitution, just nine months after the Committee of Experts had been appointed (CoE appointments took place on March 2, 2009.) I am one of four deputy directors, and they are divided in the following programs: Civic Education, Mobilization and Logistics; Finance and Administration; Media and Public Information; and Technical Support.

Following our own research of past attempts, we were poised to find people’s views on four contentious issues: executive power, role of a national assembly, elections, and the process of transition to new constitution. We received 439 memoranda from individuals, civil society, NGOs, and other groups even before we had submitted a draft to the public. Kenyans had 30 days to read the proposed constitution and to turn in comments before we could incorporate them and move to the next phase. What was unique about this part of the process is that both politicians and common citizens got to see the draft at the same time. Ultimately we received approximately 52,000 comments/memoranda and, to be exact, 1,732,386 pieces of recommendations from the public. We compiled these documents and made them available in our library for public access.

Can you elaborate on the earlier point you made about unexpected contentious issues that the Committee of Experts generated?

Well, I was referring to the most contentious issues today, which are the abortion clause and the qadi courts. On the former issue, it is very difficult to use rational arguments because it has to do with matters of when life starts and ends, and these are very personal questions that depend on faith. However, I strongly favor the abortion clause in the proposed constitution because thousands of women would basically have a death sentence if abortion were categorically prohibited: if there are complications due to the pregnancy and the life of the mother is in danger, it would be illegal for the doctor to save the mother at the expense of the baby. In addition, there is only a minor difference between the abortion clause in the current constitution and the proposed one: instead of “life of the mother” the proposed one reads the “health of the mother.” This difference seemed minor to us, and it is very similar language to constitutions in many countries. Most remarkably, in the thousands of comments that various congregations sent our way in response to the proposed constitution, there were few to no objections to the abortion clause. I think that the resources and influence from American and European pro-life, religious organizations have something to do with the change. Another reason for the radical change may be that the clergy feels that the proposed constitution may put them at a disadvantage in terms of land rights.

On the issue of the qadi courts, again we could have never predicted the uproar that the clause has generated. The qadi courts have been in place in Kenya for the past 130 years, and it stands as a political agreement between the sultan of Zanzibar and Queen Victoria in 1895. This clause is extremely important because it is a matter of minority rights and of upholding rights that have been enjoyed by Muslims in this country for generations. We received the most comments from religious organizations, and we paid careful attention to them. But the outcome—a constitution for all Kenyans—should not just be based on numbers, as minority rights and other safeguards are paramount.

And on a personal note about some religious leaders in this country, it is quite unfortunate that on the one hand their rhetoric is about poverty alleviation, justice, compassion, and love, but on the other, their actions reflect a hunger for power and wealth. I am talking about some faith leaders and not the average believer—there is a big difference between them in Kenya. Going to seminary has become a way to elevate oneself, because with priesthood comes power over people’s opinions, wealth, and higher status. Fortunately Kenyans are realizing these contradictions and challenging their spiritual leaders. Ninety-five percent of people in Kenya agree that the executive branch has too much power, 68 percent agree with the devolution of power to regional and local levels, and 67 percent agree with the legislative reforms we are proposing; 60 percent agree with the Bill of Rights, 51 percent agree with the mechanism for transition from the current to the new constitution, and 55 percent agree with the proposed land reforms. I am cautiously optimistic that the draft constitution will pass.