Bolder amendments to draft constitution

By David Ohito

Tuesday could be the defining moment in Kenya’s 20-year-old struggle for a new constitution.

The Committee of Experts into constitutional review (CoE) releases its harmonised draft for public debate.

All eyes will be riveted on Kenyatta International Conference Centre from 10am as the proposed draft, which has seen more bold amendments in the last few days, rolls out into the hands of the public.

The draft has been dubbed ‘harmonised’ as it borrows heavily from past drafts, including the Bomas, Kilifi and Wako documents. Despite the deadlock in the Grand Coalition Government on the sharing out of Executive authority between the President and the premiership, President Kibaki and Prime Minister Raila Odinga have assured the nation their parties will reach a compromise.

Sources familiar with the amendments introduced into the draft to be circulated to Kenyans through the media from tomorrow say it will propose the number of constituencies being increased to 290.

As part of the effort to ensure at least a third of the House is made of women MPs, the draft will seek to reserve 74 seats for women.

Holders will enjoy direct nomination if Parliament introduces a referendum law, and the public votes for the draft the way it is.

Other key amendments expected include setting up of a 100-member Senate Chamber of Parliament, which shall sit in Nairobi but draw membership from the regions it seeks to establish.

Obvious winners

In the proposals, which shall be subjected to public debate for 30 days, the sharing of Executive powers remains a sticking point. But women are the obvious winners in the proposals, as it has been proposed 30 per cent of the available parliamentary seats shall be preserved for them at county levels representing different regions.

Sources privy to the final amendments to the draft said the 210 electoral constituencies have been retained but 74 slots will be reserved for women who will battle for it at the county levels making a total of 284 seats. Another five to six seats will be set-aside for special interest groups.

The details emerged as CoE Chairman Nzamba Kitonga asked Kenyans to be patient and wait for the official draft, which they are entitled to comment on.

He said some media reports on the draft have been misleading and pleaded the official draft recognised by law would be unveiled on Tuesday.

The proposed draft has retained eight regions proposed along the current provinces but there will be 74 counties spread out across the country.

It was not immediately clear which regions had been bundled together to form the new blocs after public differences over the initial list shown to Kenyans by the media. It was felt the older list lacked in equity and fair representation.

"Some eight regions and 70 counties have been created. Another four counties will be carved out of Nairobi," another source revealed. "The four counties will only be for the purpose of electing a Senate and will not enjoy devolved powers like those upcountry," the source who has seen the draft said.

In other proposals, the residents of Nairobi will directly elect their Mayor while those of other regions would fall under Governors.

It would mean the current mayors of key towns, including Mombasa, Kisumu, Nakuru, Eldoret, Kakamega, Machakos, Nyeri and other municipal councils may revert to counties headed by Governors.

President and the PM

"The functions of the State and those of Government have been clearly separated and the Executive powers that flow from the Constitution clearly demarcated," the source said.

The president will be Commander-in-Chief of Armed Forces but he will not be Head of Government if Kenyans embrace the draft.

"The draft foresees a situation where the President and the PM will come from one party and as such the leaders may easily come from one region hence the need to guard against this," another source said.

The President shall perform functions that relate to the State and leave those of Government to be under the Cabinet chaired by a PM.

In a bid to cure the country’s rival ethnic leanings, the top four officials — President, Deputy President, Prime Minister and Deputy Prime Minister — will not come from the same region or ethnic community. "The proposal was aimed at showing the face of Kenya," the source explained.

Seen the draft

Far-reaching reforms on a transitional arrangement for the current Judiciary have also been proposed.

"Judges will not be fired as has been suggested by people purporting to have seen the draft. Instead, a five-bench team of Judges, three hired from Commonwealth and two Kenyans (each of whom must be retired Judge or CJ) will oversee the smooth transition aimed at re-jigging the country’s justice system," our source added.

The team will take over a year to vet all judges, retain some while those with disciplinary cases will be suspended and be on half pay as their cases are investigated by a tribunal.

Judges who opt to retire will carry home their full retirement package calculated over the numbers of years served in the bench.

The draft also seeks to create a Constitutional Court. Our source intimated an exit arrangement for the Chief Justice Evan Gicheru and Attorney General Amos Wako has been proposed and a transition strategy crafted. The Judiciary and the AG’s Office have been under scrutiny with local and international pressure for overhaul of the institutions.

"There is soft landing option for the CJ and the AG to retire and carry home they full packages," the source revealed.

During the Government retreat to Mombasa last week, the technical team refining the Constitution bitterly differed on the system of government clauses of sharing executive power.

Executive powers

The team is expected to reconvene on Tuesday and chart way forward. The main coalition partners have been haggling over whether Kenya should have a presidential system or a premiership.

ODM wants executive powers shared between President who should be Head of State while PM is Head of Government and the functions and powers derived from the Constitution.

PNU proposed a president who is both Head of State and Head of Government and appoints PM, Deputy PM, Deputy President and Cabinet ministers.