A sigh of relief swept through the country after release of the Harmonised Draft Constitution, but this was immediately followed by hard questions on some of its radical proposals.

After the Committee of Experts unfurled the draft for 30 days of public debate, interest narrowed to proposed powers for State President and Prime Minister, and the relationship between the two offices.

Stirring interest was the proviso for the removal of PM by Parliament on the strength of a simple majority vote by members of the whole House.

Also attracting immediate interest was the question of whether a president elected by a popular vote — a minimum of 50 per cent nationally — should enjoy less or equal power and influence as the PM to be picked by Parliament.

It also appeared public debate will revolve around the proposal to empower the often-divided and quarrelsome Parliament to check the presidency and the premiership, including vetting of their appointees.

The country is bound to pay special attention to the clause scrapping the office of Vice-President and its replacement with a Deputy State President, who must have been a running mate of the winning presidential candidate.

Of particular significance also is the additional requirement that he or she cannot be dropped in case there is a re-run, and will automatically take over power if the presidency for any reason falls vacant halfway through term.

The nation will also be watching how Parliament, though empowered, will handle the clause in the draft, which allows the public to recall non-performing MPs.

Other radical proposals that could rivet the attention of Kenyans, who will finally cast the final vote on what the draft should look like, include the proviso that in case of a vote-of-confidence against the PM, the entire Cabinet resigns.

Committee of Experts chairman Nzamba Kitonga during the launch of harmonised Draft Constitution on Tuesday

In this category also falls the proposal that the President, who must have garnered more than half of votes cast, and at least 25 per cent in most of the regions, can be impeached by Parliament for breach of the Constitution. At least two-thirds of the House must, however, vote against him on the floor.

Focus will also be on the financial implication of proposed two-chamber House (Senate and Parliament) and two-chamber devolved government (region and county).

There will also be debate on the radical proposal for removal of such titles associated with government since colonial period as chiefs, DOs, DCs and PCs. The draft proposes the abolition of the Provincial Administration, "to avoid conflict or overlap with regional governments".

There is also the proposed removal of all judges and subjecting them to rigorous vetting, and possible appointment to the Cabinet of people who are not MPs, and have not been associated with regional and parliamentary politics.

Those who spoke out on the draft expressed fear of the powers given to Parliament over the Cabinet.

Constitutional lawyers said governments, which are at the mercy of Parliament, hardly function.

"Conflict can come when the President and Prime Minister come from different parties," said LSK chairman Okong’o Omongeni.

The PM is cushioned by the proposed constitution because he will be the leader of the majority party in Parliament, pick members, and also chair Cabinet meetings.

But critics claim harmony may only exist where the President and PM come from one party. Some MPs expressed varying opinions on provisions for dismissing the PM. Lugari MP Cyrus Jirongo said Parliament should not arrogate itself powers to fire the country’s two top leaders.

Lands Assistant Minister Sylvester Wakoli, however, said the number of MPs required to remove the PM was lower, which could be abused.

"The office of the Prime Minister and the President are constitutional offices. There must be stringent conditions for removal of one to curb manipulation and ensure security of tenure for the holders," argued Wakoli.

Wakoli, however, expressed optimism that the 30 days for debate on the draft would enable the people and leaders to address the ‘anomaly’.

Some said even though the Draft Constitution has good provisions for improving governance danger lurks ahead.

The PM is supposed to submit to the Speaker of the National Assembly a notice of his resignation, and that of his deputy, Cabinet ministers and deputy ministers. If he fails to give the notice within seven days, the State President shall have the right to dismiss him or her from office.

The potential danger in the exercise as seen by some is that, this provision also allows the leader of the second largest party in Parliament to be appointed PM if the leader of the largest party fails to win the confidence of MPs.

This could allow smaller parties to gang up against the biggest party in Parliament, and depose its leader as Prime Minister.

This could set off a vicious circle of parliamentary coups against any government constituted as often happens in Israel, Italy and Japan.

On impeachment of the President, Turkana Central MP Ekwe Ethuro said the two-thirds majority requirement was in order, as the holder gets elected directly by the people and the same threshold should apply for PM.

Ethuro explained the President and PM have defined roles in the draft, although the PM was answerable to Parliament.

"The clause to have the PM removed by a simple majority will make the holder of the office more accountable. I am confident this will enhance performance," said Ethuro.

Garsen MP Danson Mungatana said the requirement should be supported. "The Constitution is a sacred document and will ensure those at the top do not take things for granted. They must deliver," said Mungatana.

Nominated MP Mohammed Affey said the clause was acceptable. "It is alright since PM will be elected by MPs who should kick him out if he fails to deliver," argued Affey.

Kibwezi MP Philip Kaloki said the PM would be at the mercy of the political party or coalition with the majority of members in the House.

Eldama Ravine MP Moses Lessonett said the proposal was welcome, as it would enhance checks and balances in Government.

He said the only contentious issue was who should wield Executive powers between the President and PM.

Nairobi lawyer Ashford Muriuki said any provision that can have the effect of destabilising the country should be discouraged.

"51 per cent is too low and the threshold should be like that for a constitutional amendment, which is a two-thirds majority," he said.

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