KENYA HEADED FOR A CONSTITUTIONAL OVERHAUL

THE STANDARD
By Biketi Kikechi and Gakuu Mathenge

A top committee of the Grand Coalition Government left for Mombasa last evening – two days ahead of a retreat for ministers and assistant ministers — to soften the ground for the proposed new constitution.

The Grand Coalition Co-ordinating Committee will study a draft constitution that will be published in the next one week. They will try to narrow the differences between the two blocks of the coalition on some potentially divisive proposals by the Committee of Experts (CoE).

This will be in addition revisiting such issues bearing pressure on the Grand Coalition such as trial of post-election violence suspects, International Criminal Court decision to take over Kenya’s case, unrelenting international pressure for reforms, and threat of visa bans.

The hot issues the committee will have to agree on before it seeks consensus of the Cabinet and Assistant Ministers’ retreat on over the weekend, include the distribution of Executive authority between the President and the Prime Minister.

It will also interrogate a proposal by CoE for scrapping of the Vice-President’s office to pave way for a deputy president who can take over as president, if the holder of the office dies during the second half of the term.

Deputy president, if the question is finally put to Kenyans in a referendum and they vote ‘yes’ to the document, would act as president when the Head of State is either indisposed or abroad.

Deputy president will, however, have to have been the running mate of the winning candidate. The proposal leaves no room for a secret power-sharing deal like the one witnessed last year between President Kibaki and Vice- President Kalonzo Musyoka as chaos raged.

Also on the table would be the proposal that the President be the Head of State, and the PM head of Government, but with two deputies as in the current Constitution, as amended last year to accommodated the national peace accord.

Deputy Prime Minister Uhuru Kenyatta is leading the Party of National Unity’s wing in the Grand Coalition Co-ordinating Committee. DPM Musalia Mudavadi heads the Orange Democratic Movement side.

Proposed constitution

The lawyers on either side are Justice Minister Mutula Kilonzo (PNU), and Lands Minister James Orengo (ODM).

The retreat is a culmination of top-level meetings between ODM and PNU leaders. The two sides have exchanged papers, each spelling out its position on various contentious issues. It is the first major caucus over constitutional review and reform agenda by the two sides.

The importance the coalition is putting on the need for a political settlement before the proposed constitution is published, and put on the road to a referendum like in 2005, is discernible: It shall be opened by President Kibaki and closed by Prime Minister Raila Odinga.

A wide scope of inquiry by The Standard and perusal of vital documents on the proposed harmonised draft constitution confirmed it would be seeking to create a new post of President of State, Deputy President of State, PM and DPM.

The President shall also not dismiss the PM, DPM or even Cabinet ministers in any circumstances unless sanctioned by Parliament if the draft is passed.

But the harmonised draft constitution could spell doom to opportunists seeking to cut deals after losing presidential election. The draft provides that the leader of majority party in Parliament or the largest coalition of parties therein would be appointed the Prime Minister by the President.

Interestingly, the document borrows heavily from the Kilifi Draft, also baptised the Wako Draft, and the Bomas Draft.

Executive authority

A source privy to the contents of the harmonised draft said the president-elect should nominate his running mate for the high office.

"The new arrangement makes it difficult for losing presidential candidates to jump into stage-managed coalitions for the sake of getting rewarded with political office," said the source.

But a constitutional lawyer told The Standard the proposed harmonised draft still vests a lot of powers in the Office of the President.

In the draft, the president-elect will be required to get at least 25 per cent of the votes cast in the majority of the regions. If no candidate meets the required threshold, the two leading candidates would go for a run-off within 30 days. The candidate who receives the highest number of votes in the second election shall be declared the winner.

Other landmark recommendations include a requirement that, a presidential election shall be cancelled if a candidate dies on Election Day.

The same would apply if a candidate who would have been entitled to be declared Head of State dies after commencement of polling, but before declaration of the winner.

In such occurrences a new presidential election shall be held within 60 days of the date set for the previous elections.

Within that period, the Speaker of the National Assembly shall be in charge.

The source said controversy over the swearing-in of the president-elect that has dodged the country has also been addressed.

"The president-elect shall be sworn-in on the first Tuesday, 14 days after the declaration of the results," said the source.

As indicated, each presidential candidate shall have a running mate qualified to perform the duties of a Head of State.

The constitutional lawyer told The Standard the president would under the new law address each newly elected house of Parliament.

The Chief Justice, just like the President, shall also swear-in the deputy Head of State who will be the equivalent of the current Vice-President.

Just like the President, the deputy State President shall not serve more than two terms. Should a vacancy occur in that office, the state president shall within 14 days nominate a person for approval by Parliament to fill the vacancy, which will be adopted by the House within 60 days.

The CoE is said to have recommended that the functions of the deputy State President will include deputising the President and presidential assignments.