Nzamba Kitonga: Did his insightful statement inform BBI?

 

Exactly a year ago, Nzamba Kitonga penned an insightful statement poking holes in the final draft of the 2010 Constitution and revealing how a harmonised draft was watered down.

Kitonga showed how MPs inflicted ‘mistakes’ in the harmonised draft that the  Committee of Experts (CoE), which he led, had come up with.

The harmonised copy, he said, had captured the spirit of the Bomas Draft, the Kilifi Draft and the Wako Draft, but was diluted by the Parliamentary Committee on the Review of the Constitution in Naivasha.

He submitted the detailed statement to the National Assembly’s Committee on the Implementation of the Constitution in October last year.

Kitonga said the Parliamentary committee scrapped a hybrid system of government where power would be cascaded down from the President to Prime Minister and two deputies and introduced a purely presidential system.

The panel also rejected the CoE's proposal to have Cabinet ministers drawn from Parliament and professionals and threw out the creation of the office of the official opposing leader in Parliament.

“Naivasha in its wisdom also overrode the proposal that a presidential candidate could simultaneously contest a National Assembly or a senatorial seat,” Kitonga said.

The CoE's proposals which Kitonga detailed in his statement are today at the center of the proposals by the Building Bridges Initiative report which President Uhuru Kenyatta and ODM leader Raila Odinga are officially launching at the Bomas of Kenya this morning.

The lawyer said the constitutional review process was a bus full of passengers, conductors and touts — all of whom had vested interests and concluded that it was time to amend the country’s supreme law.

Kitonga died on Saturday evening. He has as a towering advocate and was seen as the father of the 2010 Constitution.

He chaired the CoE that drafted the Constitution.

The lawyer died in Machakos as he was being rushed to a Nairobi hospital after he abruptly fell ill while attending a funeral at his rural Mutitu village in Kitui East constituency, Kitui county.

His body was taken to the Lee Funeral Home in Nairobi where several leaders trooped for viewing.

The senior counsel was admitted to the bar in 1979. He later founded his law firm, Nzamba Kitonga Advocates where he was the managing partner and head.

He has been a long-serving member of the Law Society of Kenya and served as its chairman from 1997-1999.

Kitonga also served as president of the East African Law Society and president of the COMESA Court of Justice.

He was one of the Kitui gubernatorial candidates in 2013 but lost to former Governor Julius Malombe.

He was one of the shortlisted candidates for the position of Chief Justice of Kenya to replace Willy Mutunga in 2016.

His colleagues remembered him for devoting his time to take up, on pro bono, cases of the needy.

President Uhuru Kenyatta led the country in mourning Kitonga.

He said Kitonga was a fine constitutional lawyer and a trailblazer whose demise was a blow to the country as it came at a time the country was entering a constitutional moment.

“Senior Counsel Nzamba Kitonga played a major role in the drafting of the 2010 Constitution and as a country, we really needed his input as we take audit of the Constitution through the Building Bridges Initiative (BBI),” Uhuru said in his condolence message.

“It is extremely sad that the cruel hand of death has snatched him from us.” 

Born in 1956 in Kitui, Kitonga was a top constitutional lawyer and a politician who left a mark in the country’s reform history.

Deputy President William Ruto said Kitonga was a fine intellectual and a legal giant who was deeply devoted to the democratic process.

Former President Mwai Kibaki who unveiled the 2010 Constitution that was midwifed by Kitonga said Kenya will be forever grateful to the constitutional lawyer who led a team that drafted what had been elusive for more than two decades.

“Kitonga made his memorable contribution to an eventful trigger moment that will forever define the direction of Kenya’s statehood, as well as statecraft, will take in days to come,” he said.

Opposition chief Raila Odinga said, “I have received with deep shock news of the passing of Dr. Kitonga, one of our country’s eminent lawyers, a first-rate legal mind and fighter for constitutionalism. He consistently interpreted the Constitution to make sure it grew our people and our nation.”

Chief Justice David Maraga said he learned with great sadness the demise of Kitonga, who he described as one of Kenya’s most distinguished legal practitioners and a key pillar in the country’s constitutional journey.

Supreme Court judge Njoki Ndung'u said she was shocked and "very sorry to hear about the death of Senior Counsel Nzamba Kitonga.

“My deepest condolences to his family. Nzamba and I have been personal friends for many years from the time when I was a law student. He always showed a steady hand in all matters he was charged with,” Ndung'u said.

As chairman of the Committee of Experts on constitutional review - of which Ndung'u was a member - Kitonga remained calm and focused despite all the political turbulence surrounding the process, the judge said.

Kitui Governor Charity Ngilu and Senator Enoch Wambua led the county in mourning the renowned lawyer.

They eulogised him as an icon who made an indelible mark in helping Kenya get the progressive 2010 Constitution.