Leaders split over Draft Constitution

By Biketi Kikechi

Parliament could again become the biggest hurdle towards the attainment of a new constitution. Sharp divisions are emerging over powers given to the Prime Minister in the Harmonised Draft Constitution released on Tuesday.

MPs from PNU and ODM led by Deputy Prime Ministers Uhuru Kenyatta and Musalia Mudavadi met in Mombasa and failed to agree on the powers given to State President and Prime Minister in the Draft Constitution.

The National Assembly is expected to enact changes to the draft constitution assisted by the Parliamentary Select Committee on Constitution. Members of Parliament wield significant influence at the grassroots because of their positions as elected representatives of the people.

Past Parliamentary Select Committees (PSC) failed to deliver a new constitution because of differences on power sharing and failure to honour a memorandum of understanding between coalition partners, particularly after the 2002 General Election.

All eyes will be trained on politicians and their utterances over the next 25 days, when public debate on the draft is expected to end. The Harmonised Draft Constitution will subsequently be revised to incorporate public views over the 30 days, beginning with the launch, last Tuesday.

The CoE is then expected to hand over the draft to the PSC for scrutiny and consensus building before it is returned to the experts for final harmonisation of contentious issues. This process is expected to take 21 days.

A group of MPs led by Garsen MP Danson Mungatana has started consensus building, with the support of Speaker Kenneth Marende to facilitate the review.

The 40 MPs have teamed up under the Parliamentary Caucus on Reforms to push through the draft constitution, when it comes up for debate. They have been meeting in Naivasha since Friday to discuss devolution, executive and the legislative clauses in the draft.

Central Kenya MPs have indicated their opposition to the draft, calling the proposal providing executive powers to the PM an abuse to the electorate.

Their counterparts from Western Province have, on the other hand, indicated they would support the draft constitution.

The divisions among MPs mean the draft is likely to face serious challenges akin to the ones seen between 2000 and 2005, when Kenyans attempted to write the Constitution. But even amid fears that Parliament may derail the process owing to partisan interests, a few MPs have indicated a desire to support it.

Prime Minister Raila Odinga has said the debate on the Draft Constitution should not be based on personality, but should consider the interests of posterity.

Raila said he would not comment or declare his position on the Draft Constitution. He says Kenyans should be allowed to debate it freely and decide for themselves. "I will not state my position because this is likely to undermine the debate on the Draft Constitution and create unnecessary political tension, which should be avoided," said the PM.

But Internal Security Minister George Saitoti, Fisheries Minister Paul Otuoma, Assistant Ministers Oburu Odinga, Ayiecho Olweny, and Rarieda MP Nicholas Gumbo have supported the draft, saying it is good for the country.

Prof Saitoti said the Draft Constitution would be adopted given that opponents of the previous Wako Draft are now in Government. He said the Draft Constitution has addressed sticking points, which have previously impeded constitutional review. Saitoti believes meaningful dialogue could resolve contentious issues.

Dr Otuoma said the draft would advance devolution of power, which Kenyans have been seeking for years.

"We have been calling for devolved powers, and this draft constitution provides that. We should support it for Kenyans to enact a constitution for posterity," said Fisheries minister.

Dr Oburu and Prof Ayiecho said Kenyans should decide for themselves the constitution they want. They asked the people to be aware of vested political interests, seeking to influence the constitution.

Mudavadi asked politicians to refrain from manipulating or influencing debate on the Draft Constitution. He accused some MPs of advancing partisan interests, saying they should allow the people to make up their own minds about the constitution they want.

Justice and Constitutional Affairs minister, Mutula Kilonzo, also criticises politicians seeking to skew constitutional debate for selfish reasons.

Justice Assistant Minister William Cheptumo called for sobriety in the debate, especially among the politicians. He asked politicians not to derail constitution making, saying the draft gives Kenyans the best opportunity for constitutional review.

Assistant Minister David Musila and MP Charles Kilonzo (Yatta) also supported the Draft Constitution, calling on Kenyans not to blindly reject the document.

Musila cautions Kenyans against dragging President Kibaki and Prime Minister Raila Odinga into the constitutional debate without first reading the draft.

CoE has asked Kenyans to ignore politicians and either read the draft already circulated or wait for the translated versions.

A large section of Kenyans heeded politicians’ advice not to read the draft constitution before the referendum on November 21, 2005.

In Kisumu, for example, groups set the draft on fire, claiming Raila, who was the head of the Liberal Democratic Party then, had read the document for them. Thereafter Kenyans threw out the Wako Draft in a fiercely contested plebiscite pitting those for and against the document. The ‘No’ vote won against Government-fronted ‘Yes’ vote.

But the biggest test that awaits the process will come after the CoE presents the revised draft to the House for debate within seven days of receiving the document.