Nyachae's role in failed push to change the law

It would have been interesting to know the position former Cabinet Minister Simeon Nyachae, who passed away Monday, would have taken on the constitutional review process given his past involvement in similar initiatives.

Sharp differences have emerged over the merits and demerits of the Constitution of Kenya (Amendment) Bill, 2020, also called the Building Bridges Initiative.

In May 2005, President Mwai Kibaki’s Narc government named Nyachae to take over the leadership of the Select Committee on Review of the Constitution.

His nomination caused a rift in Parliament and led to the resignation of Kanu members from the committee that had previously been chaired by William Ruto, who is now the deputy president.

In November 2004, the committee had met in Naivasha under Ruto's leadership to resolve contentious issues in the draft Constitution of Kenya, popularly known as the Bomas Draft, and negotiate a compromise between its supporters and opponents.

Among the contentious issues was the system of government to be adopted. Some MPs, especially those from central Kenya, opposed the adoption of a parliamentary system with a powerful prime minister as head of government.

The lawmakers, who were mostly from the National Alliance of Kenya Party, wanted a continuation of the imperial system with a powerful president with executive powers and a lame duck premier.

The group also opposed the devolution of power to the counties after the Bomas Draft recommended the formation of regional governments.

As a compromise, the Ruto-led committee agreed to accommodate an executive president who would appoint a prime minister from the party with the highest number of MPs in Parliament.

They also resolved to create a second tier of government at the county level but retain the districts.

Kibaki loyalists

That document would later be tabled in Parliament where it was steered by the reconstituted select committee that was packed with Kibaki loyalists and headed by Nyachae, who was the minister for Energy.

Other members were Kiraitu Murungi (now Meru governor), Christopher Murungaru, Musikari Kombo, Raphael Tuju, Paul Muite, Njoki Ndung'u (Supreme Court judge), Moses Wetang'ula (Ford Kenya chairman), Adelina Mwau (Makueni deputy governor), Norman Nyagah, Moses Cheboi and the late Kipkalya Kones.

The only Kanu MP who remained in the committee was Kuresoi MP Moses Cheboi. Some Narc MPs, however, claimed he was there to spy and report back to his bosses.

Asked if the Kanu members who quit would be replaced, Nyachae said the select committee had 27 members while the law authorised a quorum of five.

"If you counted here and found we are more than five, then that issue should not arise,” Nyachae insisted as the team began working in earnest.

The committee then constituted a technical committee chaired by Wetang'ula, who was an influential assistant minister for Foreign Affairs.

This team was to work with the Constitution of Kenya Review Commission (CKRC), led by Justice Abida Ali-Aroni after legal scholar and Constitution review expert Prof Yash Pal Ghai earlier vacated chairmanship.

The report compiled by the technical committee and the CKRC, and other documents, would later be presented at a retreat held at the Sand n Sand Hotel in Kilifi from July 15-17, 2005.

A final draft presented by Attorney General Amos Wako with many controversial amendments was adopted. Some of the changes included reduced powers of the premier, a president with all powers of the incumbent, and removal of a clause limiting the number of Cabinet ministers.

Nyachae then presented the Kilifi Draft to Parliament, together with the two other drafts (Bomas and Naivasha) that had been 'harmonised' by the technical committee.

The draft raised political temperatures in the country and Kanu MPs, who had been playing low-key politics after their party was ousted from power, used the opportunity to regain their voice.

Nyachae entrenched himself as a staunch Kibaki supporter and used every opportunity to hit at Raila Odinga, the leader of the Liberal Democratic Party wing of Narc that had fallen out with the president.

Wako went ahead and prepared the Constitution (Amendment) Bill, 2005, despite loud protests by opposition politicians, the civil society and professional bodies like the Law Society of Kenya, among others.

Contentious issues

The so-called ‘Wako Draft’ was supported by Kibaki, Nyachae and key politicians who were members of the select committee. It was opposed by Raila, Ruto, former Vice President Kalonzo Musyoka and Kanu chairman Uhuru Kenyatta before being put to a referendum.

This was despite failure to resolve the contentious issues at the heart of the long review process, which gobbled up billions of shillings.

Uhuru teamed up with Raila and other like-minded leaders and moved across the country where they held rallies and urged their supporters to reject the proposed new supreme law. 

The campaign by Kibaki's side, however, appeared to be disjointed. 

The Wako Bill was published and in November 2005, the referendum was held. There were two camps–Banana ('Yes') and Orange ('No'). The proposed new constitution was rejected with 58 per cent of the votes.