ODM wants parliamentary system based on Bomas Draft

Miguna Miguna

Some two weeks ago, the Committee of Experts invited proposals on three ‘contentious issues’ identified from draft constitutions, views collected by Constitution of Kenya Review Commission, studies by CKRC or the National Constitution Conference (Bomas), the Kriegler and Waki reports, and other submissions.

The issues identified were: The Executive and Legislature; devolution of powers and transitional clauses. The COE then held meetings with stakeholders in which it was clear most wanted an overhaul from an imperial presidency to an accountable, transparent and responsive system.

Apart from details on devolution and the exercise of executive powers, most participants, including the ODM and PNU representatives, agreed that the imperial presidency has failed and whatever system is designed must decentralise and democratise power.

When Kenya became independent in 1963, we had a parliamentary system. Jomo Kenyatta was sworn-in as Prime Minister and was Head of Government by virtue of his party, Kanu, having a majority in Parliament. The titular Head of State was a Governor-General, acting on behalf of the Queen of England. Kenyatta’s name was not on the ballot in the elections preceding his assumption of power. But no one challenged his legitimacy and exercise of power under the pretext that he had not been ‘directly’ elected.

No credible elections

In 1964, Kenyatta and Tom Mboya orchestrated a scheme that saw both the head of government and head of state functions fused into one office called the presidency. Through a constitutional amendment, Kenyatta became both Head of State and Government. There followed constitutional amendments that consolidated Executive power in the presidency, emasculated Parliament, the Judiciary and other institutions — all without subjecting Kenyatta to a real election.

Since independence, citizens have only participated in the ‘direct’ voting for a president four times. These were in 1992, 1997, 2002 and 2007. History has recorded that of the four, the 1992 and 2007 polls were most hotly contested and no credible winner was declared. Consequently, it can be argued Kenyans have only elected their Chief Executives directly in 1997 and 2002.

In view of the foregoing, ODM presented a written position on the contentious issues to the COE. ODM calls for a transparent and accountable arrangement. It proposed a pure parliamentary system based on the Bomas Draft constitution, which arose from views collected by CKRC.

However, ODM has sought amendment to Article 172 of the draft, which proposed a dual executive that leaned to a parliamentary system, yet left ambiguities and conflict.

ODM proposes an arrangement in which the leader of the majority party in Parliament forms the Government as of right and exercises full Executive authority, with the President as a ceremonial Head of State. Executive powers are then shared between the PM and a Council of Ministers.

In this system, Parliament and the Judiciary are completely independent of the Executive. The House controls its calendar and functions while a Judicial Service Commission manages service in the Judiciary.

ODM also recommends changing Article 152 so that the President commands the armed forces on the advice of the Government through the National Security Council. External defence is, after all, a function of Government, not of the State.

In the ODM proposal, power and resources are also dispersed through devolution at four levels: the national, regional, district and location. ODM proposes a rationalisation of the constituency boundaries and a constitutional seal on their number to not less than 210 but not more than 240. The building blocks at the local government level should be the locations.

ODM also proposes a 42-member Senate that will not only act as the heart of devolution; it will also share key constitutional powers for checks and balances. Does ODM’s proposal centralise executive authority in the Office of the PM? From the foregoing, it is obvious that it doesn’t.

The writer is the PM’s advisor on Coalition Affairs and Joint Secretary to the Permanent Committee on the Management of Grand Coalition Affairs.