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Thursday, 14 June, 2001, 16:15 GMT 17:15 UK
Kenya's 'most important man'
By East Africa correspodent Andrew Harding
The most important man in Kenya ambles into a Nairobi restaurant, looking like a mildly eccentric academic hunting for a library book.
A small, grey-haired, comfortable figure, in a tweed jacket and thick glasses - he seems oblivious to the stares and the nudges that follow him across the room.
He may not be the most powerful man in town - far from it - but he may well hold this country's future in his hands.
Professor Ghai's official title is "Chairperson of the Constitution of Kenya Review Commission."
A more accurate description would be "referee" or perhaps "bouncer" in a chaotic, frenzied and sometimes sinister struggle to determine the fate of the Kenyan state.
Ghai was not short of relevant experience, having been involved in drafting constitutions for Papua New Guinea, Fiji, the Solomon Islands, Cambodia and others.
Ghai immediately set about trying to broker a truce between two rival constitutional reform groups - one made up of Kenyan MPs, the other of church and civic leaders. After months of bitter wrangling, and escalating violence, the two groups reluctantly merged.
"We are at a critical stage in our history," says Ghai, whose grandparents migrated to East Africa from India.
"We now have a joint commission, representing all elements in society. I would be heartbroken (if we fail)."
But to succeed, Ghai will have to steer his commission through a minefield of traps and obstacles set by some of the most powerful forces in Kenya.
In drafting a new constitution, he will have to tackle such thorny issues as whether to reduce the enormous power of the presidency, how much authority should be transfered to Kenya's tribes and regions, and even whether outgoing President Daniel arap Moi should be offered an amnesty from prosecution.
"Hardliners in the cabinet and people around the president don't want constitutional reform... because it will weaken them.
"The key issue is fear. These people have been behaving like kids in a cookie shop for 20 years. Ghai might end the era of impunity in Kenya. That makes him a frightening figure."
The international community is watching closely. Kenya has been branded one of the world's most corrupt countries. Its economy is struggling. IMF loans have been suspended. The review is widely seen as an opportunity for Kenya to show it is serious about improving its record.
"We're not so bothered about what sort of constitution Kenya chooses for itself," says one senior western diplomat.
"In fact the current constitution could be made workable. What's important is the process itself - will it be a genuine public debate, or another inside job?"
Another observer adds (again anonymously - this is an extremely sensitive issue): "The real problem in Kenya is not the constitution - it's the long tradition of an imperial presidency where people listen to what the president says, and not what the law says."
Professor Ghai says he is keen to make the review process as inclusive as possible. He plans to spend three months touring the countryside, organising public debates about what Kenyans want from a new constitution.
"The nature of my job requires me to meet and listen to all kinds of people, ranging from the diplomatic community, politicians and religious leaders to win the confidence of everybody," he told a local newspaper recently.
"He's a very careful man," says John Githongo. "Most Kenyans shoot from the hip, but not him. You never know what he's thinking - which is perhaps his greatest strength... everybody thinks he's on their side, which makes him quite effective."
But time is not on the Professor's side. Ghai wants the new constitution in place before the next presidential election in December 2002.
"Between 14 to 15 months is sufficient, in my experience," he says.
But he acknowledges that he has a mountain to climb before then, and that his own fellow constitutional commissioners may not always be on his side.
"It would be unfortunate," he said pointedly, "if some parties decide to deliberately obstruct the process, especially those who feel that they are better served by the current constitition. It would also be unfortunate if... some commissioners try to seek favours from politicians by reporting to them on our deliberations."
He later threatened to resign "rather than head a corrupt commission".
The fact that the review process is taking place in the run up to what may well be the most important election in Kenya's history is another source of concern.
President Moi is due to stand down next year after 24 years at the helm.
Some of his supporters have publically suggested that a newly drafted constitution might enable him to stand for what, at present, would be an unconstitutional third term in office.
President Moi has distanced himself from such remarks, but there are other dangers looming - the most worrying being the possibility of another wave of tribal violence of the sort that has marred previous elections.
Kenya is made up of perhaps five main tribes and many smaller ones. Rivalries are often fierce.
A key aspect of the constitutional review will be to determine how much power should be devolved from the centre towards regional, and potentially, tribal assemblies. (A process of federalism known by the Swahili term "majimboism.")
President Moi, who comes from the small Kalenjin tribe, has repeatedly urged politicians to turn their backs on tribalism.
A close aide even warned privately that if the situation got out of hand, "Kenya's bloodbath would dwarf the Rwandan genocide."
That seems highly unlikely; but Kenya is facing an uncertain future.
It's widely hoped that the constitutional review process will help to bind Kenyan society more closely together, perhaps by reducing the power of the presidency and the frantic struggle between rival tribes for control of that office, and instead encouraging more coalition-building both in government and at a local level.
But there is a danger that the review process, hijacked by hardliners, could actually deepen the country's tribal divisions.
"I hope we will have a peaceful process," says Professor Ghai with a patient smile.
"All sides have now committed themselves to using only peaceful methods. I'm going to keep on reminding everyone of that."
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