Wednesday, November 18, 2009



By Jerry Okungu
Nairobi, Kenya
November 18, 2009

The cat is finally out of the bag. The much awaited draft constitution for Kenya was finally unveiled this week by Kenya’s top coalition leadership at a colorful ceremony in Nairobi the capital city. Except for President Kibaki who was away in Addis Ababa for an AU Climate Summit, Kenya’s Prime Minister, Vice President and top cabinet ministers were all there to witness history unfolding.

However, much as there was song and dance to usher in the new draft, the bitter memories of the acrimonious 2005 referendum on a new constitution were not lost on Kenyans. At that time, the Narc government was so polarized between the Banana and Orange factions that when finally the referendum votes were counted, the country was never the same again. Two years later, the two factions fought a bitter war following the disputed elections that saw 1500 lives lost and thousands displaced from their homes.

However, a quick glance at the draft constitution indicates that if it is lucky this time round to be adopted, the impact will be enormous on the lives of Kenyans and East Africans in general. First, Kenyans will for the first time be allowed to enjoy dual citizenship. This means that I can be a Kenyan and a Ugandan or Rwandese at the same time. However, since five states in East Africa are already on the road to political federation, this dual citizenship will most likely apply to citizens of nations outside our orbit. Beneficiaries will most likely be Kenyans who migrated to foreign lands for one reason or another.

Another group that is likely to benefit if this clause in our new document is retained are those foreigners that have either married a Kenyan citizen or have continuously lived on our borders for seven years and above. It means that those Somalis, Ethiopians, Rwandese, Congolese, Burundians and Sudanese who have in the past lived in exile in Kenya, got married and brought up their families on our borders will find it easier to become Kenya citizens. In a nutshell, Kenya, with all its little problems will become the Switzerland of Africa.

The other area where the new constitution is likely to impact on the EAC is the proposed structure of government. As it is, Kenya, like the rest of other member states has only one level of government and a unitary state. However, if the new document passes into law, Kenya will adopt the American and British system of government by having two chambers of Parliament. In the UK, they have the House of Commons and the House of Lords whereas in the USA, they have the House of Representatives and the Senate. In both countries, both houses check on each other in terms of passage of laws. It will mean legislative procedures will be longer in Kenya than in other member states.

If the draft becomes law, Kenya will largely be a federal state fashioned after the United States model with a federal government, a regional government and a county government. Each of the three layers will have powers to pass its own laws within its jurisdictions except that such laws will be subordinate to federal laws and the constitution. This means that when East Africans finally attain a federal government, Kenya will be a federation within a federation. In this scenario, chances of having a federal president, a state president (like Zanzibar and South Sudan) and regional governors are very high in 2017 when we expect to have the Federal Republic of East Africa.

One positive area where Kenya is finally emulating Uganda and Rwanda is in the formation of the cabinet but it goes a step to remove the powers of cabinet appointments from the president. If passed, Kenya will for the second time have an executive prime minister in 47 years. The first Prime Minister, Jomo Kenyatta, just like Milton Obote and Julius Nyerere, was an executive prime minister reporting to Parliament. It will mean that whoever will become the prime minister will nominate a cabinet, take the list to parliament for debate, have the names ratified and taken to the president for formal appointment. The same prime minister, unlike at present, will chair the cabinet.

However unlike in the rest of East Africa where the president is executive and all powerful, Kenya’s president will only be partially powerful. He will still be Commander in Chief of the Armed Forces, chair Security Council and retain the Foreign Ministry and International Relations. He will be the symbol of national unity and will not be a Member of Parliament with a constituency just like an American president.

With these changes bound to impact drastically on Kenya’s political landscape, one wonders how other East African member states will adjust to our new system.