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By Oscar Obonyo
Unlike the hazy transitional clauses in the so-called Wako Draft of 2005, the current document proposes a safe passage to a new constitution.
Chapter 21, which addresses "transitional and consequential provisions", provides secure legislation that retains political status quo. Clause 314 stipulates "the Constitution shall come into force upon its promulgation by the President", meaning he holds the critical key to the new law.
Ideally, the proposed constitution takes the baggage of the existing constitution and seeks to operationalise both concurrently.
On the contrary, the final document by the Constitution of Kenya Review Commission (CKRC) dubbed "Bomas Draft" as well as the "revised" Wako Draft, were unclear on when the proposed law would take effect.
The clause of "transition" generated a lot of heat between then rival Narc Government wings — Liberal Democratic Party and National Alliance Party (NAK). Some feared the constitution would come into force immediately after the referendum and accordingly end the life of the Ninth Parliament.
Contentious issues
Attorney General Amos Wako cleared the air on the apparent ambiguity by introducing clauses that affirmed continuity of the political leadership.
Indeed, the subject of transition formed part of the contentious issues in the draft that was rejected at the referendum. It left the country deeply divided along political and ethnic lines. Other contentious issues were system of government and devolution.
The new proposal offers no jitters to the political class. According to the Seventh Schedule of the Proposed Constitution, "persons occupying offices of President and Prime Minister, immediately before the effective date shall from the effective date continue to serve as President and Prime Minister respectively".
This will be in accordance with the former constitution and National Accord and Reconciliation Act. The same law applies to positions of Vice-President, Cabinet ministers and assistant ministers.
CoE also makes it clear President Kibaki will not be eligible for third term.
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