Courting reforms: Who is the fairer of the two?

By Alex Ndegwa

Even as House business stalled this week due to power feuds, PNU has revived the clamour for minimum reforms, raising the stakes in the battle with ODM for the reform trophy.

However the development could be a pointer to intrigues that have dogged constitutional review in the past and indicates the battle of wits between the coalition partners in Parliament is far from over.

PNU is lobbying for the 50 per cent plus one requirement for the winning presidential candidate, proposes a 45-day period to settle disputes before the President is sworn in, wants Parliament to control its own calendar and recall of MPs who do not deliver.

In addition, PNU proposes that women MPs constitute one-third of the National Assembly and the number of constituencies be increased to 300.

To achieve this, the party is pushing for an ‘integrated’ reform process that sanctions a wide-range of amendments to the Constitution concurrent with constitutional review.

It argues this would be ‘insurance’ in case political intrigues throw a spanner in the works to enact a new constitution. In any case PNU says its coalition partner should not have a problem with the proposals if it were committed to reforms.

The PNU coalition co-ordinating committee (PCCC), which was constituted this month to push their agenda, has agreed on 14 proposals for essential reforms.

These are listed in a document authored by the Committee’s Secretary-General Mutula Kilonzo to Government Chief Whip George Thuo.

According to the letter dated April 21, which was obtained by The Standard on Sunday, Mutula, who is also Nairobi Metropolitan Minister, informs Thuo that the piecemeal reforms can be implemented if the Constitution is amended to allow Parliament enact necessary legislation.

Ironically, some of the proposals were contained in the Bomas Draft, which the Government opposed in favour of the Wako document that was rejected at the 2005 plebiscite.

PNU is also lobbying for the number of ministries not to exceed 21, dual citizenship, establishment of a Supreme Court and proposes the retirement age of the Attorney General and Comptroller and Auditor General be stipulated in the Constitution.

Further the party wants Parliament to have a fixed calendar, the General Election to be held on a fixed date, MPs’ election petitions to be resolved within 90 days and Parliament to vet appointment of judges. Against the background of calls to remove settlers in Mau Forest, PNU suggests all forests be declared national forests to bar human activity.

"For the majority of the above its enough if the Constitution is amended to give Parliament the authority to make laws to govern the particular item. The exceptions in these are constituencies, women representation, presidential runoff and retirement age of the Attorney General and Comptroller," Mutula writes.

Other officials of the committee are PNU Secretary-General and Energy Minister Kiraitu Murungi as the chairman while Kinangop MP David Ngugi is the treasurer.

The development will raise the stakes in the raging power tussles between the coalition partners that escalated this week when Parliament business was paralysed over dispute in the creation of House Business Committee.

The tussle between Vice-President Kalonzo Musyoka and Prime Minister Raila Odinga for the positions of Leader of Government Business and Chairman of HBC occasioned the latest crisis.

Prior to the dispute in Parliament, both camps had slugged it out during the recess when they engaged in a blame game over obstruction of reforms.

After the collapse of the Kilaguni talks where PNU and ODM failed to agree on the agenda, both sides rolled out propaganda campaign with full-page paid advertisements to shred their rival’s reform credentials.

The reform agenda is, however, seen as a smokescreen for simmering power struggles that reached a crescendo after PNU rebuffed calls to renegotiate the National Accord and ODM, in retaliation, vowed to take control of House committees.

ODM has made reforms of the Judiciary and police service its pet subject, with specific calls for the sackings of Chief Justice Evan Gicheru and Police Commissioner Hussein Ali.

Indeed President Kibaki said during the Tuesday reopening of Parliament that reforming the Judiciary was paramount, but added it must be done within the law.

The President’s statement was seen as a pointed caution to critics with "lynch mob" mentality.

However, the latest turn of events has seen PNU fronting a raft of reforms that some within its ranks fiercely opposed in 2007 will raise eyebrows.

The Parliamentary Committee on Administration of Justice and Legal Affairs then chaired by Kabete MP Paul Muite had tabled the report on minimum reforms in December 2006, but lapsed. Then in March 2007, vice-chairman and Emuhaya MP Kenneth Marende tabled the report afresh and subsequently gave a notice of Motion for its adoption. The reforms never materialised.

The proposal that the winner of a presidential election must receive more than 50 per cent of all votes cast, in addition to the requirement of 25 per cent of the votes cast in at least five of the eight provinces then received a hostile reception from Government. Equally Parliament rejected the constitutional amendment Bill 2007 that sought to create 50 special seats for women and 40 new constituencies, 20 less than the number recommended by the electoral commission.

Then Justice minister Martha Karua watched in dismay as members shot down the Bill when they deprived the House of the requisite number —145 or two thirds majority — required to pass the constitutional amendment.

In 2007 the ECK had written to the Government, proposing the creation of 60 new constituencies based on population, infrastructure and size. This would have brought the total number of constituencies to 270. But the exercise was scuttled by the jostling between Government and then Opposition over the control of the process to determine in which areas the new constituencies should be established ahead of the 2007 General Election. With recent developments fuelling public discontent with Parliament the proposal to raise the number of MPs to 300 is unlikely to excite already burdened taxpayers.

But the proposal for a Bill to amend section 39 of the Constitution to provide for a recall of MPs by their electorate on specified grounds will interest the public but certainly not Parliament.

"The Bill aims at ensuring the public has the power to recall non-performing or incapacitated MPs before expiry of their terms," states the memorandum of objectives for the proposed Bill by Kamukunji MP Simon Mbugua.

Mbugua proposes a similar amendment to the Local Government Act to provide for a recall of elected councillors.

In the latest affirmative action proposal, PNU suggests that the one-third requirement for women MPs should have a sunset clause limiting its existence to two general elections or 10 years whichever is earlier. On the parliamentary calendar, PNU proposes Parliament sits on fixed dates to eliminate prorogation. Currently, the President wields the powers to prorogue, dissolve and convene Parliament, at whim.

Parliament has twice failed in attempts to wrest the powers from the President, the last being through the so-called Keter Bill.

The committee proposes that Kenyans who are citizens by birth should not lose their citizenship upon acquiring citizenship of another country, and may apply to regain citizenship if they had ceased being Kenyan citizens as a result of acquiring another country’s citizenship.

It also proposes Parliament approves appointments of judges of the High Court and Court of Appeal to promote accountability.

Constitutional amendments are an uphill task because they require a two-thirds majority. Essentially there must be sufficient consensus and a divided House is the last place to obtain the same. PNU will therefore be required to court beyond its stable to garner the prerequisite numbers.

 

 

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