By Martin Mutua
The Committee of Experts went into a retreat with the arrangement of the current Grand Coalition posing the greatest headache.
As the experts, who are meeting at Kilaguni Lodge in Tsavo Game Reserve, put final touches on their work, Kenyans’ hopes are high that the renewed efforts to get a new constitution will this time round bear fruit and end the two-decade quest for a new set of laws.
Impeccable sources told The Standard that the committee was grappling with how the new constitution would be implemented once it is adopted in a referendum.
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"The question here is what should happen to existing elected representatives and the power sharing arrangements when the new constitution comes into force," a commissioner who preferred anonymity told The Standard soon after they held a briefing session with the Parliamentary Select Committee on Constitutional Review.
According to the source, under the current constitution, a new constitution is to come into effect not more than 14 days after the referendum results are declared but the new constitution itself may suspend the operation of any of its provisions.
The sources said the meeting was unable to agree on what would happen as several questions were raised but were left to the CoE to deal with during their retreat.
According to a document presented to the House committee by the review experts is that the Kenya National Accord and Reconciliation Act states that it ceases to apply on enactment of a new constitution.
"This means that the power sharing arrangements secured in the Accord Act will cease to apply unless the new constitution explicitly protects them," adds the document.
However, the experts are said to have come up with two options on how the matter should be addressed although there was heated debate over the issue between representatives of ODM and those of PNU.
According to the experts the first option is to have all the provisions in the new constitution come into effect immediately and this would involve the abolition of the current power sharing arrangement.
The other option is to delay implementation of the provisions of the new constitution that relate to the Executive and Parliament until the next General Election.
But the experts argue that in the first option there are obvious attractions in that Kenyans have been waiting for a long time for a new constitution. One of the key demands by Kenyans is for the Executive to have powers, which are controlled through checks and balances.
On these grounds the CoE argues implementation of the new arrangements for the exercise of Executive power may seem urgent.
However, the sources said the experts were of the view that this approach is also likely to be more disruptive and raise opposition to the new constitution.
The team further argue that on balance it would be in the interest of political stability to suspend operation of provisions of the new constitution that concern the Executive and Parliament until the incumbents have completed their terms and to extend the operation of the accord until the General Election.
Lawyer Paul Muite said the best way is to amend the National Accord where it says: "On coming to the effect of new constitution, there will be an election."
Muite said this would in effect give Parliament life until 2012 before another election is held.
"It is better to amend the Accord to facilitate a new constitution without going to elections immediately until 2012," he added.
Law Society of Kenya Vice Chairman James Mwamu also supported the option of implementation of the new constitution that relates to Executive and the Legislature delayed until the next General Election.
This, he said, will give time the Interim Independent Electoral Commission to prepare an electoral register.
On the other hand the committee will also be grappling with judicial reforms although they are unanimous that the Judiciary must be reformed.
They will either propose that all the judges remain in office or they remain in office only after taking a new oath after vetting or the entire Judiciary be reappointed and all judges treated as having lost their jobs but be eligible to apply.
The experts also have a challenge on implementing a system of devolved government particularly establishing new Legislative and Executive bodies that can deliver services effectively.