Saturday, December 6, 2008



By Standard on Sunday Team

Kenya is gradually turning into a ‘consensus’ nation: The Presidency is losing the ‘imperial’ powers Kenyans fought to have trimmed for decades, and Parliament is the new hub of decision making.

Even before the new comprehensive constitution agreed to in the power-sharing deal signed by President Kibaki and Prime Minister Raila Odinga is born, many things are fast happening. And they all point to a new and changing political order.

Not only is the President bound to lose the constitutional powers to set the election date — as it will be legislated by Parliament — but he would also not decide on when to prorogue Parliament.

In a single sweep, the reforms that Kenyans agitated for under the banner of ‘No reforms, No Budget’ and ‘No reforms, No elections’ in 1997, and which were moderately adopted under the Inter-Parties Parliamentary Group (IPPG) agreement, are about to be ingrained into law.

The inter-party negotiators working on these reforms appear to target the flaws in the current law that allowed the President to single-handedly fill up all the 22 slots in the ECK after the 2005 constitutional referendum, without regard to the IPPG agreement under which parliamentary parties got representation in the commission.

In the new order, even the parties are divorced from the nomination. The power will be vested in commissions and Parliament.

Review body

But the first step is to kick out the Electoral Commission of Kenya, against which Justice Johann Kriegler’s commission returned the verdict it managed a muddled election and it is impossible to tell who won the presidency. This will pave way for an interim electoral body that would exist for 15 months, oversee the referendum on new electoral laws and constitution and restore Kenya’s faith in her institutions of governance.

The interim boundary review body cannot be removed by the President. It would require a 65 per cent ‘Yes’ vote in Parliament to disband it. The same applies to the interim electoral body. Section 41 (B) (9) of the proposed Bill, published on December 3, sets out the independence of the boundary review team: "In the exercise of its functions under this Constitution, the Commission shall not be subject to the direction of any other person or authority."

The President will also not have the final say on who will head or be member of upcoming Interim Independent Electoral Commission (IIEC) and Interim Independent Boundaries Review Commission (IBRC). Similarly, he will not have influence over the tribunal to be set up to hear cases against those suspected to have fuelled post-election violence.

The trend emerged last week with the publication of the Constitution of Kenya Amendment Bill (2008) by Justice Minister Martha Karua. Its debate starts in two weeks.

If passed by Parliament, which is highly likely because it is a pre-negotiated package, for one to be a member of the Interim Independent Electoral Commission and the Independent Boundary Review Commission, he or she must get the approval of at least 65 per cent of Kenya’s 210 MPs.


That translates to approval rating — once the National Mediation Team has given the name to the President who then forwards to the House — of a minimum of 143 MPs. Ex-officio members of the House — the Attorney General and the Speaker of the National Assembly — will not take part in the vote. That means it would it would require more than the support of PNU or ODM.

Apart from the two signatories to the power deal that stopped Kenya’s slide to anarchy following the muddled presidential elections in December, most of Kenya’s hardest questions of the day will be negotiated and resolved by the eight-member National Mediation Team.

This is the team that haggled over the power-sharing deal under the guidance of Chief Mediator and former UN Secretary-General Dr Kofi Annan at the Serena Hotel. The negotiators are all members of the Cabinet.

On the Party of National Unity bench are Justice Minister Martha Karua, Prof Sam Ongeri (Education), Mutula Kilonzo (Nairobi Metropolitan) and Moses Wetang’ula (Foreign Affairs). On the Orange Democratic Movement side are Deputy Prime Minister and Minister for Local Government Musalia Mudavadi, Agriculture Minister William Ruto, Lands Minister James Orengo and Dr Sally Kosgei (Higher Education). The team has two non-political members supporting its work from the background.

Waki proposals

The Bill on the table, which gives an idea which way the one on the implementation of Justice Philip Waki’s recommendations on the trial of those suspected to have perpetrated and financed the post-election violence will go, reads in part: "The chairman and other members of the Commission shall be nominated by the National Accord Mediation Team and appointed by the President upon approval by the National Assembly."

The team of eight meets on Monday to lay out the final draft for the establishment of a special tribunal as recommended by the Commission to Investigate Post election Violence (CIPEV), popularly referred to as the Waki Report.

Signs that the mediation team, which still consults with Annan, won’t be fading from the public glare soon emerged when Karua tabled the Bill seeking to throw out the ECK team led by Mr Samuel Kivuitu, as well as all commission employees.

On Saturday, in response to ECK employees’ plea to be spared the sack, Karua declared all will have to go to allow for a fresh beginning. The employees had appealed to the President, Prime Minister and Vice President.

Karua said no one would be spared, including the sweeper at ECK’s Anniversary Towers. That she made the remark even before the ‘Top Three’ responded, it was indicator ‘consensus’ had been reached.

The significance of the latest Bill lies in the fact that it overhauls the electoral system and boundary review operations, as Kenyans knew them, vesting powers on the two upcoming bodies and Parliament.

Security of tenure

One distinct clause on IIEC, Section 41 (3) when passed will take away the powers of the President as the appointing authority: "The chairman and other members of the Commission shall be nominated by the National Accord Mediation Team and appointed by the President upon approval by the National Assembly."

Removal from office of the IIEC and IBRC will also have to be through Parliament, where again the 65 per cent rule shall apply. In the current order, they enjoy security of tenure and can only be removed either by a resolution of Parliament through legislation, or recommendation by a tribunal.

Parliament, however, is given a caveat — the draft constitution when it finally receives it — can also not be changed save through the 65 per cent rule. Again, the Speaker and the AG are not in the voter register of the House.

The IIEC has 90 days from the date of publication of the draft constitution to conduct the referendum through which Kenyans will ratify a new constitution. The opportunity will be given to Kenyans to decide on a new electoral system, which entails a hybrid, presidential or parliamentary system.

But it will not be that easy — if Karua’s Bill sails through — for it to be adopted. At least 50 per cent of the voters must vote for it and like in the presidential elections, "at least 25 per cent of the votes cast in five of the eight provinces are for ratification."

The President again has his job cut out and time-line: he "shall, not later than 14 days from the date of publication of the final result of the referendum, promulgate and publish the text of the new Constitution in the Kenya Gazette."