Parliament and Bomas fight over review

Early this month, a meeting chaired by speaker Francis ole Kaparo and attended by 147 MPs appointed a 10-man team to amend the Constitution of Kenya Review Act, in what was seen as an attempt by parliament to take over the constitution review process.

MPs, on the other hand argue that they want to save the review process. They want parliament recalled so that they can look at the merits and demerits of parliamentary system as opposed to the presidential system of government. They would also like to have a look at the chapter on devolution, generally viewed outside Bomas as impossible to implement, given the financial implications. Last year, the Institute of Certified Accountants of Kenya [ICPAK] estimated the figure at KES 80 billion should the country be devolved entirely.

Whereas MPs argue that they want to save the review, other delegates at Bomas opine that MPs want to have control over the Draft so as to get rid of clauses which are not in their favour, such as the one allowing constituents to recall an MP that is not performing.

But the MPs insist that they would not play rubber stamp to the NCC and want power to amend the Draft as they deem appropriate. They argue that parliament is more legitimate and representative than Bomas.

Under the Act, parliament has no power to amend the Draft, which is to be handed over to Attorney General Amos Wako upon the conclusion of review talks at Bomas. As it stands, the Act empowers parliament to either accept the Draft as it is or reject it in toto. There is no room for amendments.

Kaparo, however, argues that the review would be an exercise in futility if parliament does not amend certain sections of the constitution. His views are opposed by the Constitution of Kenya review Commission [CKRC] chairman Prof Yash Pal Ghai, who says that the Act is not flawed and should not be subjected to any alteration.

I have been working on the Act for the last three years and I pretty well know it up to every comma and there is nothing wrong with it that would need to be changed , he said. Ghai, who is opposed to parliament taking over the review process, added: Our work is not going to be futile. It is going to bear fruit .

As is always the case, the key partners in the ruling National Rainbow Coalition [NARC] are divided over the matter, with the National Alliance Party of Kenya [NAK] supporting the take-over bid by parliament while the Liberal Democratic Party [LDP] is strongly opposed to the idea. However the official opposition Kenya African National Union [KANU] s stand will be the deciding factor. Currently, its 68 MPs are sharply divided over the matter.

Parliamentary interference adds to the list of controversies that have dogged the constitution review process since1997 when Kenya held its second multiparty elections. Public pressure for constitutional reforms mounted in July 1997, culminating in the formation of an inter-party outfit, the Inter-parties Parliamentary Group (IPPG) to oversee the reform.

The Constitution of Kenya Review Commission Act of 1997 - which was amended in 2000 and 2001 - is one of the three statutes that made up the IPPG package. The others are the Constitution of Kenya Amendment Act 1997, and the Statute Law (Miscellaneous) Amendment Act 1997. The IPPG package was passed by Parliament, paving the way for elections before actual constitutional reforms could begin.

But it was felt that the constitution needed a through overhaul. A select committee was formed by the eighth Parliament, but other stakeholders who felt that the review process should be people-driven decided to hold a parallel review. Various stakeholders met to discus this issue. By early 1999, the political parties represented in Parliament could not agree on how to share seats on the commission.

In November 1999, a group of religious leaders met at Ufungamano House in Nairobi and invited 54 groups from civil society that were listed as stakeholders in the review process. This culminated in the formation of the People's Commission of Kenya (PCK), comprising of representatives from other political parties, and religious and civil society organizations.

The Ufungamano initiative appointed 15 commissioners, some of whom were merged with Ghai's Parliamentary team in June 2001. The final product was a 27-member commission with the attorney general and secretary sitting as ex-officio commissioners.

But no sooner had the commission settled down to business than controversies began to plague it. Commissioners invited the ire of the then president Daniel arap Moi and Parliament when they asked for hefty allowances amounting close to US$12,987 a month. This was soon followed by another outcry when it was discovered that commissioners had spent huge sums of money purchasing four wheel drive vehicles for themselves.

But what threatened to tear the commission apart was the discovery that some commissioners who were seen to be loyal to the then governing party KANU, made a secret visit to State House without the knowledge of others, not least the chairman.

Since State House has earned the notoriety of compromising various leaders, this secret visit was seen by many observers as a ploy by KANU to have the review done in its favour. Since this visit, the commission has never been the same again, with commissioners publicly differing on various issues affecting the review process.

Wrangling between NAK and LDP has also spilled over to Bomas. Before Bomas III reconvened on January 12, a party consultative meeting held at Nairobi s Safari Park Hotel hit an impasse after parties failed to agree on a major contentious issue whether the country should adopt a presidential or parliamentary democracy.

The differences centred mostly on whether the president should sack the prime minister without reference to parliament. While NAK wants the president to have such powers, FORD-People, KANU and LDP want those powers to be vested in parliament.

Matters came to ahead when the Ufangamano group launched a parallel Draft, which was seen to favour NAK. Amid wild protests from delegates, a key player in the Ufungamano initiative Rev Mutava Musyimi resigned as a delegate.