http://www.standardmedia...&story='No'

You must have heard the proponents of the ‘No’ campaigns, led by Higher Education Minister William Ruto, say that a ‘No’ vote on August 4 will lead to consensus on contentious issues for a fresh referendum in November, where everyone will be on the same side.

I am sure Ruto and his allies know pretty well this assertion is not only impractical, but impossible. They are being conservative with the truth to win over votes and look good. Their intentions are to appear like people who want a united Kenya, but their real reasons for wanting to derail the review process is to protect their selfish, personal interests.

Kenyans should know that there is not going to be a referendum in November, whichever way the vote goes next month. If we want a better constitution, we must vote ‘Yes’ in August or be prepared to wait much longer (probably forever) for another chance.

First, the Constitution of Kenya Review Act set a fixed ‘calendar of activities’ with regard to every step that would be taken in the reform journey. A ‘No’ vote would amount to a ‘Yes’ vote for the current Constitution. Fresh attempts to find a new constitution would require that we start afresh, probably from the point of collecting views from the public. This is not achievable within three months.

Egocentric politicians

Secondly, if the Proposed Constitution is rejected, the political interpretation would be a defeat of the politicians in the ‘Yes’ camp. We all know how egocentric our politicians are, and it would be impossible to bring the winners and losers together to reach a compromise for a referendum so quickly.

But if this were to happen, it is unlikely that we would go to the next referendum united. After the rejection of the Wako draft in 2005, it took the bloody aftermath of the 2007 elections, and the Serena Talks, to finally get back to the constitution-making journey. Such opportunities may not present themselves again.

Third, the contentious issues in question are matters that it would be impossible to reach a consensus on. For instance, should we delete the provisions on the Kadhis’ courts, Muslims and their allies will oppose the new draft. We’ll also be unable to reach common ground on abortion and the land issue.

Fourth, the Budget that was read recently does not foresee and, therefore, does not make provisions for the funds we would need for another referendum.

Fifth, if we decide to write a new draft, many interested groups will demand to be included in the process, and getting their harmonised views cannot be achieved in three months.

Divided nation

Finally, why the fuss about the referendum dividing Kenyans? The result of any referendum will always be a ‘Yes’ or ‘No’ verdict, with the majority carrying the day. A referendum demands a divided nation! Otherwise, if it were possible to have everyone on the same side, what would be the need for a referendum in the first place?

A referendum recognises that people have divergent views. It is an opportunity to let the minority have their say, as the majority have their way. That is the essence of democracy. So, the referendum must proceed as scheduled and should ‘No’ carry the day, let us not delude ourselves we’ll have another shot to get a new law in November.

{James Tugee, Moi University}

Some civic education

Mr Jirongo yesterday said infront of TV cameras that homosexuality is allowed in the Draft in art. 27

this is what art 27 says:
Equality and freedom from discrimination
27. (1) Every person is equal before the law and has the right to equal protection
and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental
freedoms.
(3) Women and men have the right to equal treatment including the right to
equal opportunities in political, economic, cultural and social spheres.
(4) The State shall not discriminate directly or indirectly against any person on
any ground, including race, sex, pregnancy, marital status, health status,
ethnic or social origin, colour, age, disability, religion, conscience, belief,
culture, dress, language or birth.
(5) A person shall not discriminate directly or indirectly against another person
on any of the grounds mentioned or contemplated in clause (4).
(6) To give full effect to the realisation of the rights guaranteed under this
Article, the State shall take legislative and other measures, including
affirmative action programmes and policies designed to redress any
disadvantage suffered by individuals or groups because of past
discrimination.
(7) Any measure taken under clause (6) shall adequately provide for any
benefits to be on the basis of genuine need.
(8) In addition to the measures contemplated in clause (6), the State shall take
legislative and other measures to implement the principle that not more than
two-thirds of the members of elective or appointive bodies shall be of the
same gender.

Art 45(2) says

Family
45. (1) The family is the natural and fundamental unit of society and the necessary
basis of social order, and shall enjoy the recognition and protection of the
State.
(2) Every adult has the right to marry a person of the opposite sex, based on the
free consent of the parties.

@ Fundaah, that article you cite raises serious issues though I do not share the pessimism and raison détre for voting yes on the basis that we will not have a new constitution soon. We may not have a new constitution soon but may have a bad one on August 5th.

There is also the false optimism that once the new constitution is enacted, we will have achieved 'reforms' as if the constitution is an end in itself. It may only be a beginning because a good constitution on paper will require constant, sustained, vigilant, principled watch during its implementation for it will be faced with attempts to minimise, misinterpret or even overthrow its 'goodness'. It is not hard to tell that we have a lot of work ahead if the level of intolerance and 'tunnel-thinking' in driving the YES and demonising the NO is anything to go by. Looking positively ahead, if the YES wins, a lot of issues and persons in the current NO camp are a big part of this process of vigilant watch of the implementation of the constitution, and it is foolhardy to term all the NO camp as 'non-reformist'- there is a great deal of passion and patriotism in opposing the draft constitution.

@ Fundaah, who said constitutional interpretation is easy: I may be wrong (where did I last hear that?) but clause 27 (4) bars discrimination on the basis of sex and may, therefore, if the draft passes, be used by gay rights group to urge their case not to be discriminated on the basis of their 'sexuality', while they will fight the constitution for not going far enough under clause 45 (2) when it only provides for the right to marry person of the opposite sex (though they may argue it does not expressly bar other 'marriages').

Construing this Constitution
259. (1) This Constitution shall be interpreted in a manner that—
(a) promotes its purposes, values and principles;

is gay right mentioned anywhere?.... can you give us an alternative to 27 (4).....at least you can see the draft only recognises marriage between man and woman ... Adam and Eve not Steve.....the rest you want to interpret the way you want it to fit your cause....ie felling such a good documenty

@Spendthrift, am trying to understand how the word "sex" as used in clause 27 (4) has no relation with "sexuality" as asserted by the gay rights groups. Help me.

Lets debate like informed bloggers and not mere cheerleaders.

At no point did I say the constitution should legislate on all aspects of our lives.

I only said that what the Jirongos and Rutos are saying has merit in that the Law including the proposed constitution gives gay and gayism room to thrive.

I spoke of - if LAW does not expressely "illegalise" it - Read my post carefully and draw a line between LAW and CONSTITUTION.

If society feels strongly about a certain behaviour, as Kenya seems to feel against homosexuality, such matters are dealt with convincingly, in this case, nothing would have been easier than to state so in the constitution.

NB I am only appreciating Jirongo & Ruto's arguments in principle, as pertains the law, otherwise I dont necessarily share their views any iota beyond that.

Other lesser matters are dealt with in other laws such as acts of parliament etc.

MAYBE homosexuality will be legislated upon later by an act of parliament - unto which direction (pro or against) nobody can tell.
This is what should concern those who would have wanted to see the constitution give a clear direction on this matter.

I am however glad that you have ACCEPTED that the proposed constitution leaves the gay matter open for society to chart the way they want to go.
That is what irks kina Ruto.

All

Art 45(2) says

Family
45. (1) The family is the natural and fundamental unit of society and the necessary
basis of social order, and shall enjoy the recognition and protection of the
State.
(2) Every adult has the right to marry a person of the opposite sex, based on the
free consent of the parties.



BUT what the NO side is saying is that the constitution does not state that people from the same gender can not marry. Taht is where the issue is as it has not been barred by this BAD katiba.

It should have stated that:"Same sex marriages are not allowed" or something like that. Was this too dificult to put in or did the Americans push for it to be removed.?????

@Wendz

I am no learned friend.

However that does not bar me from commenting on mundane things like this one.

No one should seek to write the constitution through the courts, - as some statements here may suggest - that the constitution did not go further to state this way or that way.
Even the recent judgment on Kadhis courts bold as it was, stated categorically that it is not the business of courts to determine what is in the constitution or otherwise.
However subject to the constitution (all relevant sections), if anybody were to discriminate against another person, just because they are gay, then they would be contravening the constitution.

Gays can coexist but such liaisons would never be recognized as a marriage/family as defined in section 45.

All said and done in my view the word SEX as utilized in section 27, can only be construed to mean Male or Female. Nowadays there are amaphrodites though!!!


Issues of sexuality and sexual orientation are not covered here or anywhere I have seen in the proposed Constitution.

An alternative view well argued is welcome.

http://www.nation.co.ke/...808/955548/-/7g0ip5z/-/

Like the colonialists, the ‘No’ camp believes that Ukambani is ripe for conquest. That is why Higher Education minister William Ruto, the ‘No’ camp kingpin, smells blood there.

Yet Ukambani, set to prosper under the proposed constitution, suffered immensely under the Kanu dictatorship of which Mr Ruto was an integral cog.

Think of the ignominies that the region has endured because of the oppressive Kenyan state. Ukambani is a byword for all that ails Kenya: Famine. Decrepit roads. Lack of adequate and clean water. Malnutrition. Environmental degradation. Land grabbing. Domestic violence. Poor schools. Teenage pregnancy. HIV/Aids. Police brutality.
Vuluku ndalika veleke, indi veleke no alike vuluku

Fundaah, yu are one patient person. Wewe kweli ni mgwana.

wakati mwingine pia, wawache tu.

You can't change some of these people's ideas. As long as ruto said it, it is true.

I heard ruto say that and I puked my meat. Ati homosexuality is allowed because it is not there.

in that case, cannibalism is allowed as it is not expressly written.

jameni hata kama hamtaki katiba, sasa hizi arguments zimezidi. aiiii!!

There is only afew days left for me.. and my job will be done ..God willing ....Aug 5 ....I will not have laboured in vain...
Isaiah 65:23
They will not toil in vain or bear children doomed to misfortune; for they will be a people blessed by the LORD, they and their descendants with them.

I will continue working tirelessly to bring real liberation to those oppressed by the current Bad law....I say govenance issues are well addressed in the Draft....Abortion ... kadhis courts are Just sideshows by those who want my people to continue being oppressed by poverty ignorance and lack of basic ammenities at the grassroots....
Hosea 4: 6 (KJV) My people perish from a lack of knowledge.