By Peter Opiyo and Martin Mutua

The prospect of a showdown in Parliament over amendments to Revised Harmonised Draft Constitution tabled last week has led to suspension of overseas trips by ministers and their assistants.

The decision contained in a circular by Civil Service boss and Secretary to Cabinet Francis Muthaura, who reports directly to the President, shows how high the stakes are for the two Coalition partners with regard to content and fate of the Proposed Constitution. Whereas Prime Minister Raila Odinga and his troops in Orange Democratic Movement have supported the passage of the document as it is, President Kibaki’s Party of National Unity is uneasy with some clauses and is quietly laying ground for far-reaching amendments to the document before the referendum.

The undercurrents between the two blocs in the Coalition are also said to stem from perception that the Parliamentary Select Committee on Constitutional Review ‘favours’ PNU while Committee of Experts ‘leans’ on ODM’s side. Though ODM has not attacked PSC, PNU has accused CoE of bias against what it called ‘majority views’ by Kenyans. Both PSC and PNU however insist they are independent and beyond reproach.

Sources familiar with the latest development on the constitutional review process told The Standard President Kibaki’s move was meant to shore up sufficient support to pass the draft but after amendments.

Contentions

Central to the power games expected in Parliament are said to be contentions over a number of clauses in the Proposed Constitution over which PSC and CoE had differed on.

CoE overruled the PSC’s decisions to remove some clauses from the draft and re-introduce them, saying that they were "the wishes of the public". Some of the clauses include the suspension of judges and readmission after rigorous vetting as recommended by CoE, but which PSC like PNU argued was unnecessary.

PNU is also said to be planning to make changes to the draft starting with increasing the number of counties from 47 to over 70. Over the last few weeks the President and the PM appeared to differ on some issues in the Proposed Constitution. Raila had announced that he wanted the Proposed Constitution adopted without altering what CoE submitted.

But the threshold for amendments to the Proposed Constitution by Parliament is high, requiring at least 55 per cent majority or 145 MPs, which neither ODM nor PNU can attain on its own. PNU is however believed to be banking on ODM ‘rebels’ led by Agriculture Minister William Ruto and his horde of Rift MPs to tilt any possible vote in its favour on the floor of the House.

Sole mouthpiece

Government Spokesman Alfred Mutua announced the freeze on foreign travel by the 41 Cabinet ministers and their 51 assistants until the Proposed Constitution is debated and passed. The spokesman, who ODM has several times dismissed as President’s and PNU’s sole mouthpiece, broke the tradition of his weekly Thursdays televised national briefs to talk about the travel freeze yesterday in his office.

Dr Mutua communicated what ideally is the President’s wish that all Government members should be present in Parliament for the debates.

Kibaki and Raila have also differed on the issue of abortion. Even though Kibaki promised church leaders their concerns over abortion would not be ignored by MPs as they debate the Proposed Constitution, Raila said the churches should embrace a give-and-take approach.

As Government announced the travel ban, CoE made a curious announcement yesterday, which appeared to preempt any attempts by the MPs to amend its draft.

At a press conference, the experts said they would not accept any amendments to the proposed draft, particularly the one weakening the Senate, which is supposed to be a check on the powerful presidency. PSC is said to favour a weak Senate and all-powerful presidency.

CoE argued it would be "a mockery" if Parliament reduced the powers of the proposed Senate. "Kenya will be a mockery of its own in the entire World were we to agree with the PSC’s proposal the country adopts a pure presidential system but with a powerless Senate," CoE said in a statement.

PNU also appeared to engage in a blame game when — led by Vice President Kalonzo Musyoka — it accused PSC of making alterations to the original draft and "introducing contentious issues".

Concerns about the experts’ neutrality are said to have emerged after they appeared to maintain the Proposed Constitution should not be changed even though it is the responsibility of MPs to alter or to leave intact the document tabled in Parliament.

In January, PNU leaders accused CoE for allegedly ignoring the views of Kenyans on their preferred system of government. Led by Kalonzo, PNU said "the mongrel hybrid proposed in the draft would be a recipe for conflict and chaos". PSC later deleted the hybrid system and settled on a pure presidential system.

Now, CoE is maintaining that a strong Senate can only check the presidential system, giving indications it is not happy with PSC’s decision.

Another issue PNU is said to be unhappy with CoE is introduction of a clause that binds the President to consult PM whenever he wants to make any appointment.

Civic education

A source privy to the PNU-ODM shadow wars told The Standard there was likelihood CoE’s term, which has already expired, may not be renewed. "What remains of the review process can be handled by the Interim Independent Electoral Commission," said the source.

But CoE appeared to have set its eyes on seeing the process to the end when it announced on Monday it would roll out civic education programmes ahead of the referendum.

Commenting on the travel ban, Mutua said: "The Government is keen to ensure that the country gets a new Constitution as per the set schedule. Therefore, the President has stopped all ministers and Assistant Ministers from travel outside so as to allow them to be available for parliamentary debate on the draft Constitution."

Muthaura’s circular read: "I am directed to inform you that during this time when Parliament is considering the draft Constitution, ministers and Assistant Ministers will not be allowed to travel outside the country so that they are available for parliamentary debate on Constitution."

Water Minister Charity Ngilu later criticised Muthaura for writing to them, saying the matter was a parliamentary issue and should have been communicated to them by the PM. "It is not for Muthaura to write to us and copy the letter to the Prime Minister. It should have been the other way round," she added.

Justice Minister Mutula Kilonzo backed the ban on travel.

Housing Minister Soita Shitanda asked the Speaker to issue similar order to MPs. Labour Minister John Munyes opposed the ban, arguing review was a straightforward thing Kenyans had decided on. Energy Minister Kiraitu Murungi (PNU) said: "We are going to agree on how to expunge the sections that touch on abortion from the Proposed Constitution. We will be in Naivasha to build consensus against it."