Kenya: Draft: It is once again back to Kenyans to decide

kenya_flagThe first liberation was Independence in 1963, the second was tumultuous clamour for return of multipartism, which peaked in 1990, and the third could have begun on Tuesday.

In the three phases the war has been empowerment of the voter, respect for universal suffrage, clipping of presidential powers, and making every citizen count.

On Tuesday, the nation was put on track, through public release of the harmonised draft constitution that could lead to the third liberation.

This road is paved with the hard lessons, the bitter memories of the sad moments the constitution has failed us, and acceptance by the majority of Kenyans that comprehensive reforms are not only inevitable but also vital for national survival.

Kenyans wishes

The draft released by the Committee of Experts at the KICC, seeks to coalesce the wishes of Kenyans through the years in the way they want to be ruled. It builds on the aspirations of freedom fighters before Independence, the remonstrations of citizens, the reformist leaders, the civil society, and international standards of democratic practice and space. If accepted, it would symbolically be the third liberation from competing interests.

The draft, which Kenyans will debate and present their views on after 30 days, attacks the powers of the presidency, seeks to introduce a powerful premiership, and to keep the President and the PM who share Executive power in check. It drastically seeks to embolden and empower Parliament and the Cabinet.

President Kibakis Party of National Unity pushed for retention of an all-powerful presidency, while Prime Minister Raila Odingas Orange Democratic Movement pitched for a powerful premiership and a ceremonial President.

Option given

The CoE draft seeks to unite Kenyans on this potentially divisive issue by giving them the option of a hybrid system that distributes Executive authority between the two offices.

It also proposes the President, once every year, reports, in an address to the nation, progress in national duty. It proposes that presidential election be held on the Tuesday, immediately preceding the 21 days before the expiry of the term of the President. The format of National Oaths will also change, as ministers will swear allegiance to the PM.

If passed the massive powers vested in the presidency will no longer be applied at the whim of the incumbent as checks and balances have been proposed. For example, Parliament shall vet executive appointments.

The draft proposes that persons seeking presidential office should not be MPs when they are sworn- into office. Today, the President enjoys immense and unchecked powers, allowing him to make executive decisions without reference to any other institution.

According to draft, the Cabinet will be chaired by the PM and does not include the president. In addition it seeks to move the office of the Secretary to the Cabinet from President to PMs office.

The draft introduces bold proposals on the appointments of all constitutional office holders. For instance, it recommends Attorney General hold office for one term of 10 years. The same will also apply to the Chief Justice.

Also to be established will be a Supreme Court that would be the highest court in the land.

The Presidents powers of appointments such as of Chief Justice are watered down by requirement that after recommendation by the Judicial Service Commission, Parliament has to be approved it.

In the harmonised draft, the State President can only dismiss the Deputy Prime Minister, a minister or a deputy minister, “on the advice of the Prime Minister”.

The PM can be sacked by Parliament, through a vote of no confidence, which the President ratifies within a week.

Removal of PM

It proposes that removal of the PM who should be the leader of the majority party or coalition in the House by Parliament be based on simple majority vote while President can be impeached by a minimum of a two-thirds majority vote.

But to check against the abuse of the provision, it proposes the entire Cabinet resigns if a no confidence Motion in Parliament falls the PM.

Holders of constitutional offices would still be appointed by the President, but on the advice of the PM and with Parliaments approval.

The Standard analysed the harmonised draft constitution released by the Committee of Experts (CoE) on Friday and Saturday last week, and there were no contradictions between the report and the draft released on Tuesday.

Its highlights include proposal that the deputy president must have been the winning candidates running mate in the presidential election.

He or she will also execute the powers of the President when the incumbent is indisposed or abroad. If the office of the President falls vacant half way through term, there would be no election and the deputy president shall take over. “We have struck a balance and there will be no conflict between the President and the Prime Minister,” said chairman Nzamba Kitonga during the launch.

The proposed constitution also recommends the dissolution of the Provincial Administration because the national government will restructure itself into devolved units.

Devolved government

Civil servants serving as PCs and DCs will report to the Public Service Commission for redeployment. It also provides for a devolved government, with eight regions, down from the initial 14 in last weeks draft.

The Prime Minister shall be the head of government and shall direct and co-ordinate the work of ministries and legislation. The PM shall preside over Cabinet meetings consisting of himself or herself, Deputy Prime Minister, and not fewer than 15 and not more than 20 ministers.

The PM, it proposes, can also appoint not more than 10 people, who are not MPs to the Cabinet.

“Before anybody claims that the president will be ceremonial he should read the draft we have released,” Nzamba said, adding the presidency proposed in the draft would enjoy executive powers.

“He will be the Commander-in-Chief of the Armed Forces and will have powers to dissolve Parliament if it failed,” he said.

He made it clear the president and PM shall work in harmony. “The President will not be involved in the small issues of the running the day-to-day activities of the Government,” he said.

Major appointments

All major appointments by the President shall have to be approved by Parliament according to the draft constitution.

Mr Kitonga explained the role of Parliament in approving senior appointments was expanded to curtail the abuse of State power by the President. “These powers have always been open to abuse and we introduced these checks to limit them,” he said.

Overall, the draft introduces many checks on all public offices to limit abuse of power. Even in the case of MPs, a clause allowing voters to recall legislators, if they failed in their duties, has been included.

The Standard

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