Barely one and a half months in office, the National Rainbow Coalition (NARC) government is grappling with unprecedented challenges. At the centre of concern is President Mwai Kibaki’s health, which has been deteriorating since last December when he was involved in a motor accident and later admitted to Nairobi hospital.

At the time, his personal physician Dr Dan Gikonyo told a press conference that the president had only fractured his right arm and sprained a right ankle. But the public became suspicious when the following day Kibaki had to board the plane flying him to London on a stretcher. He was to remain in hospital and returned to Kenya on December 14, 2002 on a wheelchair and wearing a neck brace. Dr Gikonyo again allayed public fears and said the president had suffered a hairline neck fracture that would soon heal.

The president was to remain wheelchair bound until January 20 when he was admitted again to the Nairobi Hospital with high blood pressure occasioned by a blood clot in his injured foot. He was a guest at the hospital for eight days and when he was discharged on January 28, he was back on his feet but with the help of an elbow crutch. He emerged from the ward smiling but only addressed the public very briefly.

Kibaki’s silence persisted, leading to speculation that he could be suffering from some undisclosed ailment. This prompted to twice conduct meet the people tours, in which he never spoke, giving rise to more speculations. In both the tours, he simply smiled and waved at curious crowds, who had lined the road to see him.

The president’s ill heath has led to cancellation of several functions, while in others he has been represented either by Vice President Kijana Wamalwa or Foreign Affairs minister Kalonzo Musyoka. A major function that had to be postponed is the state opening of parliament, which was scheduled for January 28 but postponed to February 18. According to the constitution, this is a function that cannot be delegated.

Besides the president, other members of his cabinet are also ailing, fuelling fears that the government may not live to expectations. When the president was admitted in London following the accident, his vice president was also admitted in the same hospital with a kidney ailment. And when Kibaki was admitted to Nairobi Hospital for the second time, Wamalwa was away in London seeking treatment for the same kidney problem.

Also indisposed since his appointment to the cabinet is Office of the President minister in charge of public service Geoffrey Parpai. However, tragedy befell the government on January 24 when Labour minister Ahmed Khalif died in a plane crash at the Western town of Busia. Four ministers, two assistant ministers and an MP were among those seriously injured as they returned from a victory party hosted by Home Affairs minister Moody Awori.

Hardly before the dust could settle on the Busia plane tragedy, another NAR C MP – Paul Kihara succumbed to illness at a South African hospital where he had been admitted with kidney problems, gout and an infection of the lungs. Kihara is one of the MPs who attended the swearing in ceremony in parliament on a wheel chair.

Illnesses aside, the party has been hit by internal wrangles which observers say are likely to tear it apart. Soon after Kibaki announced his cabinet last month, a group of 26 MPs from the Liberal Democratic Party (LDP) – one of the major parties that form NARC – cried foul, saying that the president had breached a Memorandum of Understanding (MOU), which required that cabinet posts be shared on a fifty-fifty basis between LDP and another major party – the National Alliance Party of Kenya (NAK).

While NARC – where Kibaki originally belonged - got 13 cabinet slots, LDP only got 9. More grumbles were to follow after the appointment of permanent secretaries early this month. There was more disenchantment as it became clear that the president had favoured members of his ethnic group in the appointments. In a country where tribal sentiments run high, Kibaki is likely to face a rebellion soon and this may spell doom for the nascent coalition.

Kanduyi MP Wafula wa Munyinyi was very blunt in his comments: The reading is very clear. "The Luhya and the Luo who gave Kibaki majority votes are being ignored. We have been used. Kibaki is rewarding members of his tribe and old friends. But the struggle continues".

The sentiments were similarly echoed by a group of MPs from Eastern province who warned that they would rebel against Kibaki if the appointments do not reflect a national character. Besides the simmering row within the party, equally disappointed are youthful voters who NARC had promised to appoint to suitable positions in the government. Alas! to them, Kibaki has opted to recycle old hands in the civil service including those who had retired.

Said Kathiani MP Kyalo Kaindi : "It is necessary that we all share political, economic and administrative power equitably. We are seeing old hands being recycled in top civil service appointments. Is there a shortage of professionals in this country?" he wondered aloud.

The wrangles within the party have been extended to the cabinet in what appears to be lack of collective responsibility. The ministers have openly differed in public over matters of national interest. When Transport and Communications minister John Michuki cancelled the licence of the air charter company whose plane was involved in the Busia crash, his Roads and Public works counterpart Raila Odinga opposed him, arguing that the decision was so harsh.

Early this month, when Justice and Constitutional Affairs minister Kiraitu Murungi declared that the mandate of the Constitution of Kenya Review Commission (CKRC) had expired, Odinga – perhaps in his capacity as the chairman of the Parliamentary select Committee that set up the review body – argued that the Commission still had a mandate, as a new constitution had not been enacted.

The new government has also had to grapple with unprecedented labour crisis following what is now referred to as wild cat strikes. Health minister Charity Ngilu was the first one to face her baptism of fire when barely two days in office, the Ministry of Health staff went on strike. Although she managed to convince them to return to work, more strike were to follow when workers at the Export processing Zone (EPZ) factories downed their tools in quick succession, destroying property valued at millions of dollars.

The strikes have posed a major challenge to the government, which is now torn between championing the rights of workers and attracting foreign investors. With no solution in sight, the impasse is bound to impact negatively on an economy that is in dire need of resuscitation.

But it is insecurity that has posed a major threat to the nascent NARC government. Barely a week in office, members of the outlawed Mungiki sect raided the Rift valley town of Nakuru and killed 23 people. Whereas the government declared war on this eccentric outfit that caused mayhem even during the previous regime, its leaders insisted there would be no surrender and still continue killing innocent civilians.

That the Mungiki – an organized gang continues to operate even under the noses of security officers – has raised questions on the government’s ability to protect its citizens. With the recent revelation that the sect had secretly acquired sophisticated Land rovers in a deal with top military officials, Kenyans haven’t heard the last of Mungiki yet.

But Mungiki is not the only security threat. In a style reminiscent of the 1992 and 1997 politically instigated ethnic clashes, a group of armed raiders thought to be cattle rustlers descended on the Rift Valley town of Molo and killed one man, besides torching 30 houses and stealing livestock. With investigations revealing that members of the gang were linked to some civic leaders, it will be interesting to see how the government handles the situation in an area which has remained volatile since the 1992 ethnic clashes.

The government has also come face to face with student unrest in public universities, with students from Nairobi and Kenyatta universities engaging in an orgy of violence and looting. The students went on strike last month to demand registration of their unions, which were proscribed by the previous government. Also awaiting the government is a barrage of lawsuits by civilians who claim they were unlawfully detained by the KANU regime.

ENDS

Even though the Kenya African National Union (KANU) was kicked out of power during the December 27 elections after 40 years of uninterrupted rule, the legacy of the long-serving former president Daniel arap Moi is likely to persist for a while.

The president Mwai Kibaki-led National Rainbow Coalition (NARC) government, in particular, is eager to demonstrate a refreshing approach to governance different from Moi's 24-year rule, whose key features comprised high-handedness, deliberate promotion of sycophancy, knee-jerk approach to issues of grave national importance, ethnic consciousness to perceived officially-sanctioned corruption.

Yet, the new government that swept to power on a reform platform is cognisant of the fact that Moi’s omnipresent approach — which saw him permeate virtually every sector of the economy—might not be subdued overnight. What is certain though, is that the new government being an alliance of over 10 parties, can hardly afford to adopt the dictatorial nature of the former regime, more so at a time when political consciousness has grown considerably.

But despite being less threatening to the public, the new administration is under much scrutiny in regards to how it will go about shedding off the Moi legacy in the early stages of its statutory five-year term, given that virtually all its economic policies and political moves are likely to judged by Moi's standards.

The pressure to make a difference is exacerbated by the emerging reality that prospects of re-election in 2007, could be largely dependent on how much the 15-party conglomerate has managed to distance itself from the policies and governance style of Moi's much maligned regime.

So far with only one and a half months in office, the NARC government continue to enjoy considerable public goodwill generated by the prevalent expectations that those currently in charge have the capacity to open a new chapter in East Africa's largest economy.

For a start, president Kibaki has managed to stay away from the public eye since he took over power on December 30 last year. This is unlike the former president who was permanently in the news as a means of stamping his authority.

While other quarters argue that president Kibaki's absence from the limelight has much to do with his prolonged indisposition following a road accident shortly before last year's elections, political observers concur that it is unlikely that the new president , who came to power through unprecedented popular mandate, will be publicity-thirsty.

Much of it attributed to the fact that, president Kibaki, an economist and alumni of London School of Economics, who hails from the populous Kikuyu community, has so far injected some measure of confidence in the institution of the presidency, compared to his predecessor.

In contrast, Moi was in 1978, a beneficiary of the constitutional provision that requires the vice-president to assume leadership after the death of the president. Moreover, despite the vice-president for 12 years, he was largely seen as ill prepared for the presidency having hailed from one of Kenya’s tinniest ethnic groups-the Tugen.

The fact that he hailed from the minority group coupled with relatively limited education, was to form the core of his governance characterised by crisis of confidence that made him uneasy with any educated and independent-minded personalities, whom he strove to cut to size.

Unlike the past regime, president Kibaki has so far lived to his promise of giving free hand to those he has put in decision-making positions to make executive decisions without reference to the top. This could be a major shift from Moi's style, where ministers could not make decisions without a clear signal from State House, lest they endangered their positions.

Difficult to eradicate though, will be the ethnic-inspired mind-set that expects the government to undertake delicate regional and ethnic juggling in its appointments across the board. This emanates from the behaviour of the first two regimes, especially Moi’s, in which the president’s ethnic community was seen to have unhindered access to state goodies and appointments at the expense of others, the new government is specifically under scrutiny lest it falls into the same bandwagon.

Already, president Kibaki is facing considerable disquiet from a section of his pre-election partners over the appointments done so far, who see this as an

attempt to give priority to the president’s Mt Kenya region. Still, hopes are high that unlike the former regime that played lip service to the issue of corruption, the new government has the drive to tackle the runaway official graft seen as the major contributor to the high level of poverty and the general economic decline.

In a major departure from the last regime, the new government moved fast to publish the Anti-Corruption and Economic Crimes Bill, as well as hauling to court, some of the suspected perpetrators of corruption. These moves have also given strong indications that the government is out to streamline the state corporations that previously served as dens of corruption mainly because some of them served as the source of funds for Kanu's numerous political activities and rewards for political failures and cronies.

Yet, another lingering Moi legacy is the temptation for the new president to surround himself with a group of trusted lieutenants. The 71-year old Kibaki, is currently under pressure to prevent the emergence of a powerful self-seeking clique that was the hallmark of the last regime, but which was seen to have been responsible for the many excesses the regime committed.

As it is, there are growing fears among a section of NARC senior members that such a group has already taken shape in the name of those who stood by the president in his 10-year fight for the presidency, who have taken advantage of his illness to influence some major decisions.

But more worrying, is the prospects that Kibaki, who served as Moi's vice-president from 1978 to 1988, is seen as belonging to the conservative class of Kenyan politicians, who might adopt a rather cautious and gradual approach to changes contrary to the radical path expected by some of those who played a key role in his victory.

Apparently, the president since taking over power, has retained, in high position, some personalities who had a long stint in the previous regime at the expense of fresh blood. This, among others, is seen as a manifestation that the expected shift from Moi's style of over-reliance on long-time cronies could be unexpectedly slow, if not futile.

As the new government seeks to institute a people-centred approach to governance free from ethnic glorification, some senior members of the government have openly admitted that it will take close to a decade to totally get rid of Moi's legacy and what they term as "years of plunder".

Kenya's version of the Mexican free-trade zones has at last imploded as long pent-up labour pressure translated into frenzied wildcat strikes. With a new government in town, the 12-year-old Export Processing Zones' (EPZs) workers for the very first time disrupted activity in the US $77 million turnover enclave, clearly to the discomfort of the new rulers.

An estimated 4,000 employees have been kicked out over the ferment, in a country where adult employment afflicts half the population. This is quite substantial, going by Export Processing Zones Authority (EPZA) figures; last year direct employment was tallied at 13,444, up from previous 6,487. However, an extra 18,000 are employed through subcontracting.

The concept of EPZ was mooted in 1990, largely to replicate the highly successful 27-year-old export zones in the Indian Ocean islands of Mauritius. Kenya’s parliament in the same year passed the Export Processing Act, which gave birth to the Export Processing Zones Authority, a state corporation. The first investment in the zones was in 1992 by Sameer Industrial Park, just outside Nairobi.

The unrest was expected. Under the old government, the establishment preferred to pamper investors as desperation grew over dismal job creation rate in other sectors, after the Bretton Woods institutions had blacklisted the economy over corruption and poor governance. Last year, even as the economy registered a 0.8 per cent real growth, the zones clocked a significant 64 per cent expansion in turnover.

By and large, the zones which had been reduced to lacklustre performance since 1994 when US struck Kenya off the list of preferred textile suppliers — over purported transshipment of textile goods from Asia — only came alive in early 2001; following accession of the country to the preferential African Growth and Opportunities Act (AGOA). The bipartisan AGOA Act allows, on qualifying, 36 sub-Saharan countries to export goods to the $100 billion US market duty-free. Hardly surprising then that the Kenyan EPZs are 41 per cent dominated by labour-intensive textile industry.

The recent strikes occurred against a background of suppressed worker representation. Trade unionism, though not banned, was given short shrift at the zones. In 1994, trade unionists complained that they were normally required to give a seven-day notice before they could enter the zones. Even then entry was at the discretion of the management.

Efforts to recruit in the EPZ were pointedly frustrated, resulting in poor working conditions and measly pay for the largely female labour force. Given that most of the domestic investors who took advantage of the privileged zones were well-connected businessmen, nothing came of the workers simmering grievances.

In fact, one of the firms affected by violent strikes — in some cases property worth millions was destroyed — Sameer Industrial Park, is owned by Mr Naushad Merali, a close business associate of former President Daniel arap Moi.

Fears are now being expressed of possible capital flight to other accredited countries like Madagascar; the argument being that Kenya's only comparative advantage is its cheap labour. An investor reportedly stopped equipment worth US $1 million at the Mombasa Port recently following the unrest.

An estimated 64 per cent of the investment is foreign. Another 23 per cent are joint ventures between locals and foreigners. Locals only own 13 per cent. The foreigners mainly come from Pakistan, India, and UK, with an insignificant minority from US.

The fact of the matter is that capital can exploit the AGOA arrangement from any of the countries that have acceded. The countries have up to 2008 to source garment and yarn domestically and thus do not do so from Kenya. Local textile industry has long been killed through dumping of second-hand and other textile products. Upheavals in the zones are bound to have disastrous effects. They could easily hamper development of forward and backward linkages as the government has already heavily invested in cotton research and other aspects textile production.

And according to Trade and Industry minister Dr Mukhisa Kituyi, the giant US supermarket chain Wal-Mart has already cancelled orders worth US $12 million. But even more worrying longer-term effect is the possible impact on continued accreditation for the country to AGOA. The Act clearly states that human rights observance in the countries allowed the privilege is paramount. Exposure of lack of the same could cost Kenya the preferential treatment. No country though has thus far been threatened with discontinuation.

According to the investors, the low payment of salaries is mainly informed by competition. Kenyan wages are reported to be comparatively higher than those of Asia, especially China. Still, with the kind of privileges the companies have over other Kenyan firms, analysts belief EPZ companies

should be able to pay better if the government machinery was not treating them with kid gloves.

The advantages include a ten-year corporate tax break which most of the 39 firms (24 in 2000) are still enjoying. In the same duration, they are exempt from withholding tax and stamp duty. The capital investment is 100 per cent tax deductible, a privilege that can be extended to 20 years. But a more fundamental exemption is from the much-evaded Value Added Tax (VAT). This is levied at between 15 per cent and 18 per cent.

Though the causes of the unrest are fairly well known, others like the Federation of Kenya Employers (FKE) see a hidden hand in the whole drama. They accuse non-governmental organisations of inciting the workers. It is clear though that the expression of frustration has been given a boost by the victory of the National Rainbow Coalition (NARC) in the December 2002 general elections.

"The government and Central Organisation of Trade Unions (COTU) are in concurrence that the wildcat strikes are neither approved nor acceptable to COTU and its affiliated trade unions," said Dr Kituyi. He has, however, opined that EPZs should not apply the same labour laws as other companies.

While much of the attention has been focussed on low pay, a more serious issue has been that of sexual harassment. Most of the workers in the heavily textile EPZ sector are female due to the very nature of the work. Workers have also complained that they are not provided with medical cover on top of not being allowed sick off. They charge their employers have even failed to remit statutory dues including to the National Social Security Fund (NSSF) and National Health Insurance Fund (NHIF).

But EPZ firms have so far remained mum over these as well as other accusations. As a matter of practice, all the firms have tended to be aloof to the public they operate in their midst. Apart from textile firm Alltex, associated with Investment Promotion Services and the Sameer Group, which is the local franchise holder of Bridgestone-Firestone, others religiously shun publicity.

It is clear though that with the genie having emerged from the bottle and the probable impact of the strikes on AGOA pact, they may have to spruce up their tattered image.

With less than 100 days in power, the new government has set the ball rolling in its dedication to crack down on graft, a move that has been received with mixed reactions across the country.

This move is in line with President Mwai Kibaki’s pledge, as during his inauguration late December last year, he declared in no uncertain terms that his government would have zero tolerance on corruption.

The government kicked off its zeal by publishing through the Justice and Constitution Affairs minister, Kiraitu Murungi, bills that will enable it effectively tackle the vice that has since pervaded all sectors of governance and private enterprises, subsequently throwing the economy in a shambles.

The first is the Constitution of Kenya Amendment Bill that will pave way to the creation of an independent anti-corruption authority charged with the express responsibility of investigating and prosecuting of all corrupt cases. The body to be formed will be called the Kenya Anti Corruption Commission [KACC]. This will replace the Kenya anti corruption police unit, a department in the police force created by the former government within the police service. "While KACC is expected to operate independently, parliament and the Attorney General will have powers to order it to investigate individuals and public bodies," the bill says.

Another fundamental bill published is the Public Officers Ethics Bill that will demand all public officers inclusive of cabinet ministers to declare their wealth before and after tenure in office. It also requires the officers to declare wealth for their spouses and children less than 18 years.

The clause that proposes the formation of KACC, proposes a tri-structure in the authority: the commission, an anti-corruption advisory board and a number of supervisory commissions for each section of public service like the Public Service Commission and the Teachers Service Commission. Besides this, the president moved ahead to create an anti corruption department in his office, which will deal with cases of corruption.

The creation of an anti corruption authority has been one of the many demands by the Bretton Woods institutions, as a prerequisite to resume lending in the country that has been denied foreign aid almost for the past one decade. Said IMF during a previous talk with the former KANU government: "The Bretton Woods institutions are making corruption a pre-condition for releasing any more cash for development and recurrent expenditure to the government."

"IMF is urging the Kenyan government to establish an independent anti corruption authority and a code of ethics for civil servants, legislators and the judiciary". With the publication of the bills, a ray of hope is finally flashed of possible donor resumption any time the bills become acts and implemented.

The bills aside, the government has swiftly moved through the minister for Roads and Public Works, Raila Odinga, to repossess over 200 government houses that had been irregularly allocated to former government bigwigs as the country was approaching election. The houses mostly in the city’s posh estates had been at less then their market value.

Odinga has also sent stern warnings to a number of contractors as risking disqualification and prosecution if it will be established that they actually conspired with the previous regime to fleece the government. He has moved ahead to freeze payment authorized by KANU to some road contractors he terms ‘Cowboy,’ believed to have swindled the government of millions of dollars, even when there was no work done on the ground.

The local government minister Karisa Maitha has also moved to repossess public plots and houses grabbed from municipalities and county councils in the country. While KANU MPs cry foul, accusing the government of witch-hunting following the crackdowns, there is no relenting. Says Kamukunji MP Norman Nyaga: "The government will not relent on its crusade against corruption by turning a blind eye to past misdeeds that brought Kenyans untold suffering."

Last year, Transparency International, an anti-corruption watchdog, ranked Kenya the sixth most corrupt country in the world and fourth in Africa.

Meanwhile, the anti corruption tide that is sweeping across the country. Head of the anti-corruption police unit Swaleh Slim has revealed that his department has so far investigated 300 corruption associated cases and would soon take 58 of them to court.

Elsewhere, the government has revoked several lands hived off illegally from forests. One of them is the controversial 1000 acres curved off from Kaptagat forest in the Rift Valley province by former powerful cabinet Minister Nicholas Biwott. At the same time, the Minster of environment and Natural Resources Dr. Newton Kulundu, has threatened court action against Biwott, for destroying the forest relied upon by the locals for their water catchments.

The corruption battle that began with the judiciary is bound to spread to other departments. Already, High Court judge Justice Samuel Oguk has been charged in court for obtaining money by false pretence among other charges.

Also featuring on the list that is swelling everyday is Mombasa District Commissioner Ezekiel Machogu, accused of misleading the central tendering board to pay 166 million to a road contractor, as well as former Kenyatta National Hospital Director Hosea Waweru, who was charged with graft.

The government has also extended the crackdown to the armed forces where ten Army Land Rovers were mysteriously sold to members of the outlawed Mungiki sect. Office of the President minister Chris Murungaru confirmed that senior officers were involved in the scam and has promised to bring the culprits to book.

The foreign community is impressed with the manner the new government has stepped up its war on graft. The US, Britain, the World Bank and other development partners have expressed their appreciation and promised to support the government in its endeavour to stamp out the vice.

But the government’s war on graft may be hampered by its own officials, who were involved in the vice during the past regime. How the government will deal with such culprits remains to be seen.

ENDS

Kenyans may not have a new constitution as soon as earlier anticipated. The National Rainbow Coalition (NARC) government, which promised a new constitution in the first 100 days upon ascending to power has reneged on the promise and says there are a number of pending anti-corruption Bills, which need to be enacted so that donors can loosen their purse strings.

According to Justice and Constitutional Affairs minister Kiraitu Murungi, the earliest a new constitution can be enacted is end of July. Murungi says the anti-graft Bills have to be debated and passed first before the MPs can get time off for the National Constitutional Conference, which was interrupted by the dissolution of parliament last October.

But Makueni NARC MP Prof Kivutha Kibwana, also a constitutional lawyer urges the government to conclude the review process as pledged during the campaign period. According to Kibwana, the National Constitutional Conference should have been convened before the official state opening of parliament on February 18.

Kibwana rubbished some of the Anti-corruption Bills published by the government saying they contravened the Draft Constitution. "If a country wants to have a basis for renewal and reconstruction after suffering massive authoritarianism, the first step is a new constitution", he says.

The constitution review process has been mired in controversy since its initiation in 1997. Against the backdrop of several amendments, public pressure for constitutional reforms mounted in July 1997, culminating in the formation of an inter-party outfit, the Inter-Parties Parliamentary Group (IPPG). The IPPG package, which contained minimum constitutional reforms, was passed by parliament but it was felt that what Kenyans needed was a new people-driven constitution.

A parliamentary Select Committee was formed under the chairmanship of Langata MP Raila Odinga to oversee the review process and later appointed the Constitution of Kenya Review Commission (CKRC).

But since religious groups and other civil society organizations also wanted to participate in the exercise, a series of meetings lasting almost six months at Nairobi’s Ufungamano House and Bomas of Kenya culminated in a merger, resulting into a 27-member commission with the Attorney General and the Commission Secretary sitting as ex-officio commissioners.

After more than two years of acrimonious exercises including collecting and collating views, civic education and deliberations on the views gathered, CKRC finally launched the draft document on September 27,2002. But the controversy did not end there. Since then, a few commissioners and their chairman Prof. Yash Pal Ghai have been at loggerheads, sometimes disagreeing openly in public.

Late last month, two Commission vice chairmen Professors Idha Salim and Okoth Ogendo insisted that the draft constitution should be redone as it contained flaws and could not be presented to the National Constitutional Conference in its present form. "The draft was written in a hurry because of elections", said their statement.

But their claims were immediately disputed by other experts, who felt that they were not being honest, having been part of the team that came up with the draft. Even the timing of their announcement was suspect. They convened a press conference when Ghai was out of the country. Makueni MP Prof. Kivutha Kibwana (NARC) – who is also a constitutional lawyer – said: "I don’t read goodwill in their demands. They are people who want to keep their jobs".

The International Federation of women lawyers, Kenya (FIDA) Executive Director Ms Jane Kiragu said: "To tell Kenyans that the draft was done in a hurry and is therefore not representative of their views is dishonest and opportunistic". The commissioners have always been accused of delaying the review process so that they can continue earning hefty allowances.

Late last month, Murungi declared that the mandate of the Commission had expired on January 3 and that the commissioners would not be paid their allowances from that date. But this has only complicated matters, raising issues of legality.

As Ghai and Murungi contend that the commissioners do not have a mandate now, the commissioners on the other hand argue that the commission legally exists as provided in Section 33 of the Constitution of Kenya Review Commission Act, which created it. Besides, the commissioners argue that they still have US$ 2 million to spend and would not therefore require additional funding.

Upon the dissolution of the eighth parliament by former president Daniel arap Moi late last year, Attorney General Amos Wako cited the same section and said it provided that "the commission will stand dissolved only when a new constitution has been enacted". However, Murungi maintains that the commissioners will have to await a renewal of their mandate by a reconstituted parliamentary Select Committee after the ninth parliament is officially opened on February 18.

Issues of legality aside, sources close to the commission say that the commissioners are claiming that the government is dragging its feet, after promising a new constitution in the first 100days of office. A commissioner who requested anonymity lamented: "There could be a change of mood in the government. We don’t get the kind of support we expected". Other sources claim that a section of the government is not comfortable with the position of Executive Prime Minister and devolution of powers as proposed in the Draft constitution.

But Commission Secretary Patrick Lumumba absolves the government from blame. "When we promised a new constitution by June, it was assumed that people would be pushing in the same direction. I want to give the government the benefit of the doubt. I don’t want to say it does not want a new constitution now", he said at a press conference.

However, it is not only the commissioners who are criticizing the government for delaying the enactment of the new constitution. Early this month, a group of 16 opposition KANU MPs accused NARC of fomenting political mischief to entrench itself in power.

In a press statement read at parliament Buildings by the party’s Director of Elections William Ruto, the MPs said: "We earnestly believe that the NARC government is fomenting political mischief in order to entrench itself in power while denying Kenyans their right to good governance and a more accountable and democratic government".

What, however, plagues the commission most is the wrangling between the commissioners and their chairman, and even amongst themselves. The commissioners feel that it is Ghai who campaigned for the stoppage of their allowances. Ghai also maintains that the commission should now be trimmed to only seven commissioners and two commission secretaries as the remaining workload is now light. "The need to continue with the commission’s work is shared by all the commissioners except the chairman", complained commissioner Githu Muigai.

Analysts also trace personal differences among the commissioners dating back to their days as Law students or lecturers at the University of Nairobi. The latest disagreement, however, arose from claims that an NGO whose mandate is not known has hijacked the review process with the chairman’s blessings, an accusation that Ghai denies.

The Institute of Economic Affairs has been organizing seminars for a group of civil society organizations since last October to discuss the contents of the Draft Constitution. The organizations have been meeting at Palacina Hotel, which has earned them a name – "The Palacina Group". It is instructive that Ghai has attended some of the seminars.

Matters were made worse by the revelation early this month that hours before KANU MPs went into a retreat at Mount Kenya Safari Club to discuss constitutional reforms among other things, Ghai held a four-hour meeting with two top KANU officials without informing other commissioners.

Differences within the Commission also came to the fore when the Commission retreated to Mombasa last August to prepare the draft. One Commissioner, Mr Keriako Tobiko, never travelled with the group. Other commissioners perceived to be unco-operative – Dr Mosonik arap Korir, Ms Abida Ali and Ms Alice Yano attended the proceedings but did not contribute to the deliberations.

Consequently, the four commissioners - known to be sympathetic to the then ruling party KANU - were not present at the launch of the document and therefore did not sign it. Earlier that month, the then president Moi turned down an invitation by the Commission to go and present his views, arguing that he was being called at the "eleventh hour after the constitution had been written". He later described the Draft Constitution as "alien".

On August 30, 2002, the review process was thrown into disarray following a High Court order stopping the Commission from carrying on with its work. Two lawyers Tom Kopere and John Njongoro went to court arguing that some of the proposals contained in the Draft constitution would push them out of their jobs. The order was later quashed by an Appeal court.

Upon its launch, the draft constitution was greeted by lawsuits filed by Appellate judge Justice Moijo ole Keiuwa and High Court judge Vitalis Juma. They sought to bar the discussion of the parts touching on the judiciary at the National Constitutional Conference. Among the radical changes proposed in the draft constitution include lowering the retirement age of judges from the current 74 to 65 years. The judges are also supposed to vacate their offices and apply afresh for their jobs.

It is these proposals that prompted the jittery judges to seek legal redress.

ENDS

*Jan., 16: Seventeen groups, including the Law Society of Kenya (LSK) and the International Commission of Jurists (ICJ) urge for the removal of Chief Justice Bernard Chunga.

*Jan. 19: President Mwai Kibaki is admitted to Nairobi Hospital with high blood pressure occasioned by a blood clot in his injured right foot.

• Jan. 22: Government suspends payment of pending bills and contractor claims following revelations that the government lost up to Ksh 2.5 billion to 12 road building projects.

• Jan. 24: Labour minister Ahmed khalif dies in a plane crush in Busia. Three other cabinet ministers are seriously injured.

• Jan. 27:High Court Judge Justice Samuel Oguk appears before an anti-corruption court, charged with obtaining money by false pretences.

• Jan. 28: President Kibaki leaves hospital walking with the help of an elbow crutch. This is the first time he walks following the December 3, 2002 motor accident.

• Jan. 31: Francis Muthaura replaces Sally Kosgey as the head of Civil service and Secretary to the cabinet.

• Feb. 11: Former political detainees visit the infamous torture chambers at Nyayo House used during the Moi era. Justice and Constitutional Affairs minister Kiraitu Murungi says the government will preserve them as a national monument of shame.

Mwai Kibaki

Dr Chris Murungaru

Geoffrey Parpai

Wamalwa Kijana

Mrs Lina Kilimo

Ochilo Ayako

Kalonzo Musyoka

Eng. Raila Odinga

Mrs Charity Ngilu

Moody Awori

Prof. Anyang Nyongo

Kipruto arap Kirwa

Prof. George Saitoti

John Michuki

Karisa Maitha

Ms Martha Karua

David Mwiraria

Raphael Tuju

Dr Mukhisa Kituyi

Amos Kimunya

Dr Newton Kulundu

Vacant

Peter Ndwiga

Kiraitu Murungi

Najib Balala

Amos Wako