It was the last quarter of 2009, and Kenyans were now getting used to having two centers of powers with unending wrangles in the grand coalition government. At this time, debate was majorly on how the executive should be shaped in the new Constitution as the Committee of Experts on the review process prepared to publish the harmonized draft on November 17, 2009.
On this particular day, September 3, 2009, all eyes were on a political parties retreat on at the Leisure lodge in the South Coast. It was not one of those high-profile closed-door meetings that journalists were kept away from. But there were two people who appeared unwanted at the meeting – President Kibaki’s adviser on constitutional matters Kivutha Kibwana and his equal at PM Odinga’s office Miguna Miguna.
It was Miguna who made, through very candid observation, the environment hostile for him and Kibwana when he stood up and described the then government system where the President is the Head of State and Commander-in-Chief as a “mongrel”. “This is a mongrel system and it is important to separate the powers of the President from those of the PM.” Miguna told the politicians giving a clear indication of his and to a large extent his boss’ preference.
Kibwana had not said anything at the time but would end up being a subject of discussion with PNU representative George Nyamweya interrupting him and arguing that the forum was not about two individuals but about the constitution-making process. Nyamweya said that he did not understand what Miguna and Kibwana were doing at a political parties’ meeting adding that the discussions were not centred on the President and the PM. “We are here as political leaders and we should be allowed to represent the views of the parties.”
I managed to pull Miguna aside as we had tea. And here he defended the presence Kibwana and himself saying it was to underline the Executive’s commitment and goodwill to the review process. He even went ahead to say that the “politicians inside the meeting” should have marked his words when he earlier told them that “Constitution making is a political process.”
“I was invited here officially and I do not see what the problem is. The PM and the president are very important stakeholders and Kenyans ought to know what they are thinking.”
Kibwana would also later defend his presence at plenary saying; “We are not trying to influence you (CoE) positively or negatively”. A few weeks earlier, I had obtained some letters by the two criticizing CoE’s work and they would later be accused of interfering in the review process even as they engaged in their own war of words.
The two represented the ideological differences of the two principals as it would later emerge. Their presentations both in the letters to the CoE and in various forums were the real PNU/Kibaki and ODM/Raila stands and they both appeared to have clear briefs from their bosses.
Kibwana would later tell me of the frustrations that he had with the “President’s men”. Despite being the Constitutional adviser, Kibwana was not totally in control. In his words, Kibwana’s brief’s to the President would come back changed taking a different direction following meetings that Kibaki would have with his “men”.
The “Kibaki men” included the ministers from the PNU side and especially Uhuru Kenyatta, Martha Karua and John Michuki and this was not the first time or the last time that such a senior government official would intimate of such frustrations.
I would later meet Miguna in Naivasha as MPs “mutilated” the draft Constitution but this time he was not as friendly as he was in Mombasa. He just like the rest of the strategists and PSC members at the Great Rift was under pressure. He perceived all journalists covering the PSC closed-door meetings as PNU moles who would pick Raila’s secrets from him and give to Kibaki’s side.
The intrigues in Naivasha would reveal how much selfish interests were a threat to the national good of Kenya just two years after Kenyans hacked each other to death over a disputed election. New contentious issues arose in Naivasha – most of them made up to distract opponents from their course. But it was clear, this had to do more than giving Kenya a new Constitution.
But the Constitutional fight between the Kibaki and Raila sides was just a tip of the iceberg. There was a larger problem stalking the Kibaki-Raila government – the unresolved post-election violence crisis. No one had been brought to book for the crimes committed and thousands were still in camps inside their own country.
ICC prosecutor Luis Moreno-Ocampo had the eyes on Kenya. This would later be a political game changer that would be a clear threat to the new Constitution.