Constitution Review war: It’s all about power

By Gakuu Mathenge and Alex Ndegwa

Confronted with a document many consider solid — courtesy of the Committee of Experts — the political class has been scheming how to force through changes in the proposed constitution.

And today, The Standard On Saturday can reveal that the main reason the politicians have been spending sleepless nights, plotting how to change the draft to their advantage, is all about power and control of resources. Top on the list of the provisions that have made MPs jittery — and which is now threatening to throw the review off course — is the proposal for powerful senators and governors who could rival MPs and ministers for power and control resource distribution.

The row, currently playing out mainly between the coalition partners, has seen President Kibaki’s Party of National Unity (PNU) demand to reopen debate on the design of the proposed Senate and the number of counties as proposed by the Committee of Experts (CoE).

But Prime Minister Raila Odinga’s Orange Democratic Movement (ODM) has stood its ground and opposed the reopening of debate on the chapter on Senate that makes the new legislature the upper House.

But PNU reads mischief, claiming a powerful Senate with enormous powers over resource distribution is aimed at overturning the institution of a powerful presidency as agreed in Naivasha by the Parliamentary Select Committee on the Constitutional Review (PSC) in January. It was at this retreat that PSC vouched for a purely presidential system of governance with adequate checks and balances. ODM was initially for a parliamentary system. The Proposed Constitution is to be tabled in Parliament on Tuesday and time is running out to bridge the differences so as to give the document an easy ride through the House.

ODM supports a powerful Senate as proposed by the CoE. On their part, President Kibaki and Raila have expressed support for the draft.

The bone of contention is the structure of the Senate as proposed by the CoE, and which PNU now says would have the effect of overturning all the agreements reached at Naivasha by the PSC in Janurary.

Arguments against Senate

Those opposed to the Senate as proposed by CoE advance two arguments:

That it is unrepresentative, as all Senators from all proposed counties, regardless of population differences, have equal votes.

To cure this, they propose that principles of representation agreed for constituencies in Naivasha in January by the PSC be cascaded to the counties, to make the county government units as equally representative as possible.

For instance, its proponents say, Nakuru County has over 1.7 million people, while Nairobi County’s population is about 2.5 million people. Embu County has about 500,000 people while Meru County has about 1.3 million people.

In North Eastern, the proposed three Counties of Wajir, Garissa and Mandera have a combined population of 1.5 million people — almost equal to Nakuru County’s 1.7 million. Their argument therefore is that it would be unfair for the senators to each have a vote. But Dr Carey Francis Onyango, deputy director at Centre for Multi-Party Democracy, says the Senate as contained in the proposed constitution is weak and a far cry of what Kenyans envisaged.

"It is a compromise, a watered down Senate. In advanced democracies, the Senate is the real power House that underpines accountability by the Executive. In Nigeria, for instance, the President writes to the Senate president if he were to delegate his powers to the Vice-President," he said. Energy Minister Kiraitu Murungi, who is also the secretary-general of the newly formed Progressive Democratic Movement (PDM), had earlier said that the movement and its affiliate parties would meet to discuss the Senate before they take a common position. He, however, did not specify when the meeting would be convened. MPs who have in recent years controlled the Constituency Development Fund kitty are also said to be uncomfortable with the immense powers that would be enjoyed by county governors.

The governor, along with the executive arm of the county, which he appoints, will enjoy immense political and economic powers because he/she will be directly elected by the people and would be in charge of a sizeable budget.

Ray of hope

There was, however, a ray of hope that matters could yet be resolved yesterday when more than 40 MPs from across the political divide met to seek ways of ending the impasse.

The MPs, who met at County Hall under the umbrella Parliamentary Caucus for Reforms, resolved to press for a National Assembly retreat to thrash out contentious issues and build consensus. Garsen MP Danson Mungatana, who chairs the caucus, said the group had met on Thursday evening with over 100 MPs to discuss the latest storm threatening the review process.

"There is need for a retreat to thrash out the concerns and we shall be instituting the correct procedures," said Mungatana as he read the statement after the two and half-hour meeting.

More than 80 MPs had signed up for yesterday’s meeting, stressing there is popular will to galvanise a unity of purpose to ensure conclusion of 20-year search for a new Constitution. At County Hall, the 40 MPs agreed that calls for and against the amendment as fronted by PNU and ODM were both legitimate.

The MPs now plan to move another adjournment Motion this week to free Members from the business of the House and allow them to travel for the planned Naivasha retreat.

Naivasha caucus

On Wednesday, ODM MPs defeated a Motion of adjournment of the House that would have allowed members to attend the Naivasha caucus to debate the contentious issues in the Proposed Draft.

Reports indicate that ODM Chief Whip, Mr Jakoyo Midiwo may have misled his colleague, Juja MP George Thuo, that all was well before ODM’s 25 MPs rose to defeat Wednesday’s Motion of adjournment against PNU’s 23. Deputy Prime Minister Musalia Mudavadi and ministers Charity Ngilu, William ole Ntimama and Anyang’ Nyong’o are among those who voted against the adjournment Motion.

PNU was assured that the Motion — moved by Midiwo — would pass, and that its representatives in the Parliamentary Select Committee (PSC) had already arrived in Naivasha by the time the vote was taken in Parliament. The truth was that no ODM MP on the PSC had left Nairobi for Naivasha. PNU blamed Raila for the blockade on the eve of the retreat while ODM insisted the decision to skip the meeting was a ‘parliamentary, not party affair’.

Cabinet ministers Amos Kimunya, Naomi Shaban and Najib Balala attended the meeting of MPs yesterday that drew members from across the political parties. Kanu Organising Secretary Justin Muturi says the CoE Draft tends to defeat the objects and spirit of devolution.

The Draft states the first objective of devolution as promotion of democratic and accountable exercise of power.

"One does not achieve this by designing an unrepresentative senate that enjoys enormous powers. Such a Senate can sabotage a President elected by over 51 per cent vote, by denying him funds to implement the manifesto on which he was elected to execute," said Lugari MP Cyrus Jirongo.