How Bomas gave birth to power sharing debate

By Biketi Kikechi

The genesis of contentious issues in the draft constitution can be traced back to the Kenya National Constitutional Conference at the Bomas of Kenya.

The most heated debate revolved around the chapter on the powers allocated to the President and the Prime Minister’s office in the three drafts released for public debate since 2004.

At the Bomas conference, delegates allied to Cabinet ministers opposed the creation of a bicameral legislature claiming it was expensive and unnecessary.

The Senate was however included in the final draft after approval from the technical working team from the legislature and a majority of the delegates.

The Upper House was to be later expunged by Members of Parliament who met in Kilifi to compile the final draft before the referendum in 2005.

Those who have read the latest draft constitution should have realised the Senate has been accorded the same functions proposed in the Bomas draft.

The Consensus Initiative at the Bomas conference decided to set up a working group involving all parliamentary political groups to resolve sharp differences over the Executive.

They were expected to work together with the conference chairman together with the moderator and make their recommendations to the consensus committee.

After long argument, the parliamentary committee decided to repose the executive authority of the Republic of Kenya in the President, the Prime Minister and the Cabinet.That technical working committee on the Executive rejected the recommendation.

The final draft provided for a structure that appears to be similar to the one proposed by the Committee of Experts where the President is the Head of State and Commander in Chief of the Kenya Defence Forces.

The same applied to the Prime Minister who became Head of Government. The office holder would coordinate and direct the work of the Cabinet.

That however changed in the Wako draft of 2005, where the Bomas draft was altered to make the Head of State head of Government, Commander-in-Chief of the Kenya Defence Forces and chairperson of the National Security Council.

There has never been a contention that the President shall be elected in accordance with the current rules which require that a candidate garners majority of votes countrywide and certain percentages in a specified number of regions.

All the three drafts also concur that President should appoint the Cabinet in consultation with the Prime Minister.

Whereas the Bomas draft limited the number of ministers to 17, the Wako draft left the task of determining the number to Parliament and the President.

Number of ministers

The current draft clearly spells out the number of ministers will not be less than 15 or above 20.

The three drafts however gave Cabinet the power of making most Government decisions.

That the PM shall be the leader of Government business in Parliament, shall co-ordinate the work of ministries, shall prepare legislation and shall be responsible to the Cabinet and Parliament.

The Bomas and the current drafts spell out that the President should not hold any other public or political party office.

The President should also have legislative functions and should periodically address Parliament.

The current draft says Presidential elections should be held concurrently with parliamentary, regional and county polls.

That is a departure from the Bomas draft, which recommended presidential elections be held on every Tuesday in August on the material day after five years by universal suffrage through secret ballot.

The Bomas draft said Presidential petitions should be filed in the Supreme Court while petitions in the current draft are placed under the Constitutional court.

The Deputy President takes over in all the three drafts when a vacancy occurs when the President is removed from office.