Yash Ghai

IMPERATIVE OF JUSTICE

Kenyan President Mwai Kibaki has grossly abused his office as president. This abuse is sufficient for his impeachment, but Article 145 of the constitution concerning impeachment is not yet in force. Grounds for impeachment include gross violation of the constitution and gross misconduct.

The Proposed Constitution will soon become Kenya’s new constitution, with the massive endorsement of the people. The result of the referendum puts beyond doubt the wishes of Kenyans to bring about fundamental social and political changes – a new birth, no less.

There are few more critical factors to building Kenya as a peaceful and united nation than the way we resolve the controversy over the Kadhi's courts. As is painfully clear, we have become a deeply fragmented nation.

The Committee of Experts (CoE) produced its harmonized draft in November, which it revised in December/January after public input, and revised again, taking into account the views of the Public Service Commission (

The Kenya Parliamentary Select Committee (PSC) has started its review of the revised harmonised draft (RHDC), with gusto, by slashing some valuable provisions. One member said, even before the PSC had received the RHDC, that it intended to ‘mutilate’ the draft.

Will the Harmonised Draft Constitution by the Committee of Experts (CoE) become merely another milestone in our never-ending constitutional journey or herald its end? Whether it leads to a new constitution depends fundamentally on what the people do with it.

Criminal trials in international tribunals or tribunals with national and international membership are increasingly being viewed as the only way to bring dictators and other highly-placed state officials responsible for the misery of thousands to justice.

The ‘Waki’ Commission of Inquiry into Post-Election Violence was clear that an essential component of the process for the return to a peaceful and democratic Kenya, where the rule of law is respected, is the trial of persons with most responsibility for the violence.

At the start of the present millennium, Kenyans participated in an extensive and wide ranging review of the constitution to give ourselves an inclusive and participatory democracy and acknowledge the sovereignty of the people.