KENYA GEARS UP FOR A RADICAL GOVERNMENT ARRANGEMENT

DAILY NATION
By OLIVER MATHENGE
November 9 2009

Team of experts does a balancing job of dispersing power and entrenching rights
The proposed constitution provides for an executive prime minister, a two-chamber parliament and devolution, according to a working draft seen by the Daily Nation.

In a sign of hope for reforms, the Committee of Experts has substantially finished writing the new constitution and is fine-tuning it in readiness for publication this week.

On Monday, Attorney-General Amos Wako was in meetings with the committee and therefore changes may be made to the draft reported here.

The draft proposes a radical overhaul of the way the country is governed. It proposes a majimbo system with governments at the national, provincial and country levels.

The national government will be made up of two houses of parliament and an executive consisting of the State President, Prime Minister and the Cabinet.

The draft will propose a powerful executive prime minister who will play the roles now assigned to the President in the current Constitution.

However, the prime minister will not be the head of state, chairman of the national security committee and the commander-in-chief, roles which will continue to be played by the president.

The prime minister is not elected directly by the people, rather, he is picked by MPs from amongst themselves.

The proposed draft constitution scheduled for publishing this week is promising to radically alter governance in Kenya.

The Cabinet will be made up of a maximum of 20 ministers, all nominated by the prime minister and appointed by the president.

The prime minister, who will be in charge of the running of the government, will have leeway to appoint up to half of his Cabinet from outside parliament.

The proposal effectively transfers executive authority from the presidency to a prime minister, who will be the leader of the party with the most MPs.

The president, who retains some powers, will still have to be popularly elected, and must get more than 50 per cent of the national vote in addition to 25 per cent of the vote in at least five provinces.

The president will still have the power to appoint public officials, but in consultation with the prime minister and at times with the authorisation of parliament.

The president will not be an MP and will not sit in the Cabinet. But he or she will remain the Commander-in-Chief of the armed forces and have the power to sign Bills into law.

In an interesting innovation, the president will be able to send Bills to parliament for enacting into law. But he or she will also be able to choose to send such Bills directly to the people, who can adopt them into law through a referendum and with no input from parliament.

The Head of State will still dissolve parliament but it will just be a formality at the end of the legislative term or if the government falls through a vote of no confidence. Parliament will have its own calendar fixed in law and the president will be stripped of his power to dissolve it at will.

The draft provides for a system of devolution based on 14 regional assemblies and 70 county governments that will be headed by governors. Other than the Nairobi Metropolitan, governed by a popularly elected mayor, the other 13 regions will have between three and nine counties.

The country will have two houses — the Senate and National Assembly — and will also have regional governments which will replace the Provincial Administration.

The new law requires that no gender should occupy two-thirds of the seats in the National Assembly.

Elected members

In the Senate, every county will have a representative while every region will elect two women. One person to represent either the youth or persons with disabilities will be elected from every region. In total, the document proposes a senate of 113 members including a speaker, who will be an ex-officio member.

Other than the elected members representing constituencies, 70 seats will be reserved for women in the national assembly. There will also be seven members representing marginalised groups and a similar number representing persons with disabilities.

If the current number of constituencies is retained, the national assembly, according to the draft will have 295 MPs, including a speaker. The new parliament will therefore have a total of 406 representatives and two speakers.

On devolution, the new draft improves on the Bomas and Kilifi drafts by providing clearer provisions on relations between the central and regional governments, particularly on matters of taxation and jurisdiction of relevant institutions.

The county governments will deal with the socio-economic issues affecting the areas but shall have to be consulted by the regional governments.

The national government will deal more with formulating policy and leave the implementation to the regions and the counties.

The draft wants major changes in the Judiciary, with all judges required to step down when the new constitution comes into force. They will only be reappointed if they are cleared of corruption.

The draft has also retained the Islamic kadhi courts as currently constituted.

The new constitution will also allow for dual citizenship and sets up a commission for resource allocation.

The draft will now be published, then taken to Parliament and subjected to a referendum next year