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BBI revisits rejected proposals in run-up to 2010 referendum

By Roselyne Obala | October 23rd 2020
Nzamba Kitonga headed the Committee of Experts (CoE) which proposed a hybrid system fronted by the BBI. [File, Standard]

It is now emerging that the proposals to expand the Executive mirrors the document experts harmonised from previous draft constitutions in the run-up to the 2010 referendum.

In a classic case of the stone, the builder rejected becoming the cornerstone, MPs assembled in Naivasha renegotiated the harmonised draft prepared by the Committee of Experts (CoE), throwing away the proposals now brought back by BBI.

The Nzamba Kitonga-led CoE had proposed a hybrid system of governance as proposed by BBI, but which was trashed in Naivasha in the heat of give-and-take session by Parliamentary Select Committee co-chaired by former Mandera Central MP Abdikadir Mohamed and former Budalang'i MP Ababu Namwamba.

Starring in the negotiations were Uhuru Kenyatta (now president), William Ruto (now deputy president) and former Justice Minister Martha Karua, among others.

Opposition leader Raila Odinga did not attend the Naivasha talks but was represented by a retinue of loyalists who quickly acquiesced to pure presidential system, catching the other side unawares.

“These are the same proposals we had but MPs who went to Naivasha dismantled them. It had the president, DP, PM, the two DPMs and a mixed Cabinet,” explained Kitonga yesterday.

The harmonised draft had also proposed a mixed Cabinet, where technocrats in Cabinet become ex-officio members of Parliament.

“There shall be a PM appointed by the president in accordance with Article 151B. The PM shall be the leader of government business in the National Assembly, oversee the legislative agenda in the National Assembly on behalf of the government and supervise the execution of the functions of ministries and government departments,” says the proposed BBI Bill that seeks to amend the 2010 Constitution.

“The PM shall chair Cabinet committee meetings as assigned by the president, assign any of the functions of the Office to the Deputy Prime Ministers and perform any other duty assigned by the president or conferred by legislation.”

Yesterday, leaders poked holes in the BBI report, noting that if implemented as proposed, it will signal the return of the imperial president. The president will seek direct mandate from the electorate with the deputy, and will be the Head of State and Government, will have powers to hire and sack his Cabinet, including the PM, and control the Legislature.

The DP will retain his role as the principal assistant to the president with the security of tenure, but no responsibilities.

Presently, Interior Cabinet Secretary Fred Matiang'i is the one chairing the Cabinet Committee on implementation of government projects and programmes, a move that has irked Ruto's allies.

Both the president and DP will not be members of Parliament and the PM will be the leader of official government business in the House. With this new arrangement, the position of the DP is rendered ceremonial, as the bulk of the work will be discharged by the PM and the two deputies.

The office of PM becomes vacant if the holder is dismissed by the president, ceases to be an MP, resigns from office in writing addressed to the president, or is impeached through a simple majority.

Karua yesterday censured the proposal on the return of imperial president who will also appoint the Judiciary ombudsman, thus compromising the independence of the Judiciary.

Elgeyo/Marakwet Senator Kipchumba Murkomen, an ally of Ruto and a fierce critic of the BBI report, faulted it too, warning against retaining a deputy president who is the running mate of the president and then appointing a PM and deputies with more power.

Nominated Senator Millicent Omanga also argued that the report creates a monster of a president with sweeping powers.

“Big mistake. Funny though that the people who waxed lyrical about imperial presidency are on the forefront supporting BBI because they think they'll be the beneficiaries,” she said.

Checks and balances

However, BBI Steering Committee vice-chair Adams Oloo sought to clarify that the proposals do not create an imperial president, but instead create checks and balances where the PM and the two DPMs will represent the Executive in Parliament.

“A person nominated as PM for approval by MPs must be worth the salt. The candidate must be able to rally majority of MPs or the coalition to get their support and win their confidence,” said Oloo.

He said the role of the president in appointing the PM and the two deputies was ceremonial.

Oloo dismissed the notion that the president can proceed to appoint a PM if the MPs reject the nominee twice, saying it was meant to forestall a crisis and expose the government.

“The president has the PM and the DPMs to help him run his government. He can fire the PM because he has the mandate of the people to execute promises and agenda,” he said.

Political analyst Martin Oloo argued that the running mates have proved to be a problem to candidates and should therefore be appointed after elections to allow the winners to negotiate for post-election pacts.

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