By Kenfrey Kiberenge

Voters will have real power over their MPs, if the proposed new draft constitution is enacted in its current form.

The draft enables voters to recall their non-performing representatives before the end of the five-year term in the august House.

In 2003, MPs in the Ninth Parliament arm-twisted the Constitution of Kenya Review Commission (CKRC) and delegates at the Bomas conference to delete a similar provision from the draft.

Prof Yash Pal Ghai, who chaired the commission, recalls how MPs, from the onset of the conference, threatened to use their legislative mandate to disband CKRC and render the conference null and void if the clause was retained.

"They threatened to dissolve the Bomas conference and a committee was formed, which deleted the clause," Ghai told The Standard on Sunday.

He says legislators were also opposed to the clause that gave the President powers to appoint ministers from outside Parliament. "They were also opposed to non-MPs being appointed in the Cabinet," he recalls.

On several instances, PLO Lumumba, who was CKRC secretary, said MPs had threatened to get rid of the clause if the draft had to be presented in Parliament, which is usually the last stage before referendum. Both provisions were deleted at the beginning of the conference.

The two clauses have found their way into the draft constitution that is yet to be published by the Nzamba Kitonga-led Committee of Experts.

Says Section one Article 130 of the proposed draft: "The electorate under articles 124 and 125 have the right to recall elected Member of Parliament before expiration of the term of the relevant House of Parliament."

It, however, goes on to give MPs more say by giving them the leeway to come up with an Act of Parliament that will guide the recalling.

Section two of Article 130 says: "Parliament shall enact legislation to provide for the grounds on which a member may be recalled and the procedure to be followed."

Ms Anne Njogu, Centre for Rights Education and Awareness chairperson, says Kenyans and the civil society groups will be watching to see how MPs handle the clauses this time round.

"Our MPs are known to shoot down anything that appears to be against them. But they need to appreciate that this is not their constitution. It is bigger than Parliament, the President and the Prime Minister," says Njogu.

Experts also expect that the Act that will provide the grounds on which a member may be recalled and the procedure to be followed might raise the bar at unrealistic heights, thus rendering the provision irrelevant.

To ensure the recall clause was not used by MPs’ political opponents to settle scores, the CKRC draft had proposed that for a non-performing MP to be recalled, one must get 30 per cent of all the voters to sign the declaration or the establishment of recall.

If passed, Kenya will join countries like the US, Canada and Venezuela, whose constitutions provide for the recall of representatives.

But some analysts feel the clause is unnecessary in Kenya, where wealth, and not leadership skills, determine who goes to the august House.

University of Nairobi Political Science lecturer Joshua Kivuva says Kenyans should instead be educated on how to elect a good leader.

"Kenyans still do not know how to identify good leadership qualities. That is why we elect murderers even when we know they are murderers," argues Kivuva.

He says without civic education, even when the electorate succeeds in recalling one MP, the likelihood of replacing him with another non-performer is high.

Another provision that could run into trouble with MPs, besides the recall clause, is the barring of the Prime Minister from picking more than 20 ministers and 20 deputy ministers, half of who could be qualified professionals from outside Parliament.

Says Section three Article 182 of the draft: "The Prime Minister, in presenting ministers for appointment under clause (2) (b), include the names of not more than 10 persons who are not of the National Assembly but who are qualified for election to the National Assembly."

There are 44 Cabinet ministers and 52 Assistant ministers, most of who were rewarded by the President Kibaki and PM Raila Odinga for their support during campaigns.