Parliament plots to create two DP seats, powerful prime minister
By Brian Otieno
| September 15th 2021
Members of Parliament are plotting to bring back the Building Bridges Initiate (BBI) proposal to expand the Executive.
True to assertions by BBI proponents that they will sponsor the amendments through Parliament, the Constitutional Implementation Oversight Committee (CIOC) chaired by Ndaragwa lawmaker Jeremiah Kioni is scheming to create five new positions, more than what flopped in the court.
According to Kioni, the proposed legislation will seek to create the position of prime minister and two deputies as well as two deputy presidents.
The committee is currently in Mombasa perusing a draft Bill prepared by Parliament’s legal office that contains the proposals. Kioni yesterday told The Standard that they would share the Bill today.
The proposed arrangement seeks to dilute the office of the DP.
“It is necessary to dilute the DP position so that people can stop fighting for it. Right now everyone is jostling for the position,” Kioni said yesterday.
The position is currently the second most powerful seat after that of the president. Presidential aspirants, too, are having a hard time picking prospective running-mates.
On Monday, a section of Mt Kenya politicians listed the DP position as an irreducible minimum in negotiations with presidential aspirants from other regions.
Kioni said his committee, through a parliamentary initiative, plans to have the changes passed through a referendum where Kenyans will vote concurrently during next year’s General Election.
“Some changes will take effect immediately. Others, like the introduction of a second DP, may have to wait until 2027,” said Kioni.
The proposal, to some extent, mirrors the grand coalition arrangement of President Mwai Kibaki and former Prime Minister Raila Odinga and is among those contained in the Constitution of Kenya (Amendment) Bill, 2020 spearheaded by President Uhuru Kenyatta and Raila after the March 9 ‘handshake’.
The Court of Appeal, however, quashed the referendum bid last month upholding the High Court ruling on the matter.
It is a different constitution amendment Bill that seeks to have the president pick his Cabinet from Parliament sponsored by the same committee by amending Article 152 (3) which says “A Cabinet Secretary shall not be a Member of Parliament” and another by West Mugirango MP Vincent Kemosi that proposes a change in the CS name to Cabinet minister.
“It is best that these issues are considered one after the other because Kenyans may like one proposal but not the other,” said the Ndaragwa MP.
According to the proposals, the PM will chair the Cabinet, a fundamental change that alters the current constitutional dispensation where the chair is the president.
MPs from the party with most seats in the National Assembly will appoint the PM.
The 2010 Constitution created a presidential system through which the Executive, Legislature, and Judiciary assume distinct roles.
The proposed legislation essentially creates a hybrid system.
If successful, the Bill portends good news to future presidential aspirants with various interests to satisfy.
“We must admit that we have a problem of inclusion that needs a solution. We hope to address the matter of inclusivity through this Bill,” said Kioni.
According to Article 255 of the Constitution, such sweeping changes will require a referendum. That is if it passes through Parliament by securing the nod of 233 MPs, being two-thirds of members of the National Assembly.
But those are not the only hurdles standing in the way of Kioni’s plans.
Another stumbling block is the August 20 Court of Appeal Judgement that dictated the process to amend clauses that form the Constitution’s basic structure.
Kioni said his committee was open to pursuing all avenues, including the one proposed by the Court of Appeal.
Legal experts, argue that creating the position of a PM who will sit in two arms of government violates the spirit of the Constitution, offending the principles of checks and balances and separation of powers.
“The PM heads the Executive and also resides in Parliament. Our presidential system kicked the Executive from the Legislature. This was meant to allow for checks and balances. When you have the head of the Executive residing in Parliament you have removed these principles,” says former CIOC chair Abdikadir Mohamed.
The constitutional lawyer argues that Kioni’s latest move violates the basic structure doctrine as decided by the Court of Appeal.
“Kenyans wanted to vote for those who sit in the Executive directly. This is our Constitution and we can change it. Expanding the Executive to enhance inclusion is a good idea but it must be done through the right process,” he adds.
Makueni Senator Mutula Kilonzo Jr shares the same view, arguing that the changes proposed are among the ones that sank the BBI Bill.
“The creation of a PM’s post and two DPMs will affect the functions of Parliament, which is a protected clause. In a pure presidential system, the Executive does not sit in Parliament.
“Introducing another DP also means you have to change the Constitution and prescribe the process of electing the other DP,” said Kilonzo.
But Kioni faults the argument. “I have a problem with this thing we call the basic structure doctrine as I don’t believe that Kenyans can be prevented from changing their Constitution. That was never the intention of its drafters. But the matter is at the Supreme Court, which we hope will issue a different judgment,” he said.
The CIOC chair argues that having a PM in Parliament will help solve issues in real-time owing to their availability in the House.
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