By Standard Team

It is so near, yet so far. That is how Kenya is so close to the dream for a new constitution, but still so far from it – given the row between coalition partners over contentious clauses.

This week could be yet another turning point in the 20-year long walk to a new constitution. This begins with today’s crucial retreat in Naivasha by Parliamentary Select Committee on Constitutional Review. This will be followed by round table talks by Members of Parliament from both sides of the coalition on Thursday, again in Naivasha.

Both sides are agreed the process is now at its most delicate stage. What is fresh is how the constitutional review became acrimonious when it had reached the final stages, hitting its Waterloo in the national referendum later in November 2005.

PSC member Amina Abdallah at a past retreat. [PHOTO: FILE/STANDARD]

Cracks over the CKRC driven process started appearing when PSC then headed by former Cabinet minister Simeon Nyachae gathered in Naivasha just like the current team headed by Mandera Central MP Mohamed Abdikadir today.

Kenyans will this week be hoping coalition differences will not slacken the review or torpedo the document.

Already, President Kibaki and Prime Minister Raila Odinga have shown signs they are drifting apart on some issues, despite giving public assurances they would remain committed to a new constitution.

Some of the issues they have differed on include the clause on abortion. Today, PSC members will sit in Naivasha and prepare to brief their parliamentary colleagues who will join them for a House caucus Thursday.

PSC will set the agenda for the meeting and will hold preliminary deliberations on issues it want reviewed.

Even though ODM and PNU have given public assurances they would pass the Proposed Constitution, there are issues on which they clash.

Yesterday, PNU announced it had resolved to rally its troops in Parliament behind the Proposed Constitution, but after some amendments to be floated in Naivasha.

Vetting of judges

The issues PNU wants to amend are likely to spark a standoff with their coalition partners, ODM, and with the Committee of Experts.

The issues are centered on the number of counties and provisions in the transitional clauses. The party is also said to be keen on altering sections relating to national security and vetting of judges.

PNU officials who spoke to reporters after a parliamentary group meeting said they resolved to increase the number of counties by at least three.

The party also indicated it would support the original provision in the Harmonised Draft allowing the President to appoint the Cabinet from outside and within Parliament.

"We have decided as PNU to support the Naivasha agreement, and then move on to consider harmonising them with the recommendations of the Committee of Experts," said nominated MP George Nyamweya.

But ODM wants Parliament to adopt the Proposed Constitution as presented by CoE to PSC, without amendments.

Leaders from President Kibaki’s party said they would be demanding that the document passed by Parliament ensures the views of Kenyans were accommodated.

The Standard learnt Parliament might amend the law to allow MPs to alter the Proposed Constitution before it is presented for a referendum.

PNU is said to be considering proposing an amendment to the Constitution of Kenya Review Act 2008 so that the new amendments are incorporated into the Proposed Constitution before the House delivers a verdict on it.

This could be a strategy to avoid a standoff with CoE, which stated publicly on Monday it does not want MPs to make far-reaching amendments to the proposals it made after gathering public views.

If the amendments were included in the draft before the vote, CoE would not have any more role in harmonising the proposals. CoE and PSC hold different positions on some clauses, including the powers of the senate, which PNU wants watered down and ODM upheld.

The experts recently returned some clauses into the draft earlier deleted by the PSC. It also deleted some that were entrenched by the MPs.

CoE has warned MPs against any attempts to water down the role of the Senate. It argues for it to be in line with the pure presidential system PSC proposed, it must be powerful.

Kenyans’ views

A member of CoE, Njoki Ndungu explained it would be a "mockery" to have a weak Senate.

Raila, who is also the ODM party leader, was quoted at the weekend saying he will urge Parliament to give preference to what CoE compiled, arguing the experts had considered what Kenyans wanted.

ODM Secretary General Anyang’ Nyong’o reiterated yesterday the Orange party had resolved to back the Proposed Constitution. But PNU feels CoE has been making "unwarranted changes" to the draft.

PNU secretary general, who is also Progressive Democratic Movement interim chairman, Kiraitu Murungi, said: "There is a feeling among many MPs CoE did not incorporate the Naivasha Accord (a set of political compromises among MPs) and we are requesting for room to rope in these changes."

Mr Kiraitu, however, added the leaders from the two blocs supported push for a new constitution.

The PM’s advisor on coalition management, Miguna Miguna, said the only role MPs would have is to debate the draft and then pass it as it is, or garner 65 per cent "to mutilate or reject it".

Mr Miguna said: "Naivasha can only achieve mischief. The retreat can only be used to bribe or intimidate MPs to agree to selfish and parochial amendments."

A member of Committee of Experts on Constitutional Review Otiende Amolo argued the law required that any changes to the Proposed Constitution must raise two-thirds majority of all MPs.

"The Naivasha exercise is an internal arrangement for MPs for consultation and consensus building. The law does not recognise it," said Mr Amolo.

But Senior Counsel Paul Muite asked the President and the PM to reach consensus and even invite the Church to broker a compromise.

On the voting threshold required to make amendments, Kiraitu and Mr Muite argued the Proposed Constitution was not a Constitutional Bill, which requires a two-thirds majority.

Muite also pointed out a possible legal loophole arguing that Section 54 of the Constitution was not amended and voting to amend the laws can be done by simple majority of votes.