Friday, January 29, 2010



By Beauttah Omanga
It reverberated across the land like Dr Kofi Annan’s ‘We Have A Deal’ message in front of Harambee House in February 2008, after a breakthrough in power-sharing talks.

On Thursday, history thrust on Parliamentary Select Committee Chairman Abdikadir Mohammed the task of briefing the nation on political compromises struck in Naivasha on issues that could have killed the dream for a new constitution.

"It was difficult but by the grace of God we did it,’’ sighed Abdikadir, ending the anxiety that had gripped the country from the moment the 26 PSC members checked into Great Rift Valley Lodge on January 17.

Incidentally, as if in a rush not to be seen to have mimicked the English saying ‘on the Eleventh Hour’, on Day 10 on Thursday, PSC broke up its retreat with a smile, and a promise to hand its consensus report to the Committee of Experts this afternoon.

But despite relief sweeping across the country from the PSC cross-party deal that even President Kibaki and Prime Minister Raila Odinga could not get their key committee of Cabinet on review to hammer out, there are still two hurdles to be overcome.

One depends on whether Kibaki’s Party of National Unity and Raila’s Orange Democratic Movement would agree on how CoE would incorporate PSC’s deal into a final document for a referendum.

Two, for the new law to be promulgated, it must be passed by Kenyans at the referendum. "We have gone through every chapter, we are on course to handing our report over to CoE tomorrow afternoon,’’ said Abdikadir.

With the statement he eased fears the talks would stall because of ODM-PNU disagreements on what amounts to ‘pure’ presidential system, the nature and levels of devolved government, number and distribution of constituencies to be created, separation of powers, and ensuring the independence of the Executive, Judiciary, and Legislature.

PSC team agreed on a pure presidential system in which the President will have the option of picking Cabinet ministers from Parliament or outside. But those picked from the House would have to relinquish their seats.

Just like in the US from where the model is borrowed and adjusted to the demands of the two sides of the Coalition, the President has to be nominated by a political party but should not hold any party office.

"The President can serve a maximum of two five-year terms, must also get 50-plus one vote of the total votes cast, and 25 per cent of votes in more than half of the 47 counties," said Abdikadir.

Independent candidates

The office of the Prime Minister will therefore be expunged from the Constitution.

Women will be allocated a quarter of the 25 Cabinet slots, whose membership includes the President and the Vice-President. The proposed size of the Cabinet, 25, is almost half of the current 42 ministers appointed when the Grand Coalition Government was created in 2008.

An earlier suggestion that the President nominates 50 per cent of the Cabinet from outside Parliament was dropped, just as a hybrid system initially proposed, and which CoE discarded.

Independent candidates will also be allowed to run for president if the proposed law is adopted. Any eligible voter can run for president, but no age limit was set for people seeking top leadership.

The President will also enjoy the power of appointing ambassadors, High Commissioners and diplomatic representatives with approval of Parliament, but will have the power to fire them without consultation.

Parliamentary elections will be held in August and presidential poll in December of the election year.

The powerful president the PSC proposed shall also chair a new organ called the National Security Council. In the legislature, the National Assembly and the Senate shall have a combined strength of 349 MPs.

Parliament will comprise of the current 210 members, additional 80 representing new constituencies to be created, and 47 special seats for women.

There shall also be 12 slots for nominated MPs as is now. The National Assembly shall therefore have 349 seats. The Senate shall have 47 members, also elected by each of the counties. The number of counties was settled on after PSC deadlocked and agreed to do away with them.

Parliament was, however, given the power to impeach the President who will be replaced by the Vice-President to serve the remaining term should he or she vacate office.

Parliament will also have its own calendar and set its agenda unlike now when the President decides when to open and prorogue the House.

The devolved government was left at national and counties, but equity funding shall be created and devolved fund entrenched in the Constitution. This was agreed after PNU stuck on 2.5 per cent of Gross Domestic Product and ODM 20 per cent.

Earlier in the day, MPs told The Standard PSC agreed to have 12 per cent of the national budget shared out equally among all counties, but that was not in the final briefing.

Among independent commissions created were the Teachers Service Commission, Public Service Commission, Judicial Service Commission, Parliamentary Service Commission, and the Kenya Human Rights and Gender Commission.

Police and Administration Police shall also be under one command, with the title of inspector-general, who will head the new unit to be called Kenya Internal Security Services.

The office of the Auditor-General was also retained in the proposed constitution. In the Judiciary, PSC decided the country establishes a supreme court of law and discarded proposal for a constitutional court.

There shall also be the Kadhis court, as it is today and court martial, which will be retained as surbordinate institutions.


Conception was also resolved after it was agreed life begins at conception, and not at birth, as earlier mooted by the PSC, thereby closing the window anti-abortionists feared would be abused.

Overall, it appeared the PSC bowed to pressure from interest groups to create harmony and cushion the draft from encountering opposition at the referendum.

Sources at the meeting revealed Deputy Prime Minister Uhuru Kenyatta summoned 14 of his colleagues on Wednesday night to fight for reinstatement of the Teachers Service Commission in the draft.

The team did not look at the Transition Clauses, which takes care of movement from the old to the new constitution, because of time constraint.

They also recommended that Independent Interim Boundaries Review Commission and the Independent Interim Electoral commission be merged.