Uncertainty looms over new constitution

The controversy that has been raging since last April when the constitutional conference was first convened came to a head mid last month when the conference delegates voted to strip the president of his powers. The vote, which effectively made president Mwai Kibaki a ceremonial head, led to a walk-out by a section of the cabinet, led by Vice-president Moody Awori.

Thus, a report on the consensus committee chaired by Catholic bishop Philip Sulumeti was thrown out by delegates, sparking off acrimony that degenerated into a shouting match between delegates with divergent views.

The committee was appointed to iron out the differences between the National Alliance Party of Kenya [NAK] and the Liberal Democratic Party [NAK] factions of NARC who were divided on whether the country should adopt a presidential or a parliamentary system of government.

The Sulumeti committee was also mandated by the plenary to look at the chapters on devolution of power and report back. However, the committee’s proposals did not go down well with the delegates. It had proposed a strong president who would be head of state and government, head of the cabinet, commander-in-chief of the armed forces and head of the National Security Council.

With the report having been rejected, not even cabinet minister Raila Odinga’s motion which was unanimously passed to allow Kibaki to retain his executive powers till the 2007 elections could save the day. “Unless the Sulumeti report is debated and adopted, we are withdrawing from the conference”, said Justice and constitutional affairs minister Kiraitu Murungi. “All ministers and MPs, please let us meet outside”, he added.

Awori was later to announce that the government had withdrawn from the conference, sparking off a series of court battles which now threaten to derail the exercise. Consequently, the fate of the Bomas Draft Constitution, which has yet to be officially handed over to the Attorney General for publication now hangs in the balance.

The constitutional conference has been heavily politicized, with LDP championing the creation of an executive prime minister while NAK prefers a presidential system. Ironically, the two factions have both shifted the stands they took in 2002 while presenting their views to the Constitution of Kenya Review Commission [CKRC].

As the secretary general of the then governing party Kenya African National Union [KANU], Odinga supported a presidential system, an idea he abandoned soon after decamping to NARC. On the other hand, Murungi as the shadow attorney general and Kibaki as the leader of official opposition presented a memorandum to the CKRC, proposing the creation of the post of an executive prime minister.

They proposed that the president be stripped of his powers, which would then be transferred to the premier. “NAK believes that the enormous powers vested in the presidency has transformed the Kenyan president into an authoritarian imperial monarch, exercising feudal powers”, said Murungi. He added: “NAK proposes that the powers of the president be drastically reduced and that powers of the head of government be exercised by a prime minister”.

With a number of ministers such as Martha Karua and Amos Kimunya having vowed to block the passage of the Bomas Draft Bill in parliament, the question that now lingers is: What next?

Controversy has stalked the constitutional conference since it convened last year. While inaugurating the conference on 30 April 2003, Kibaki called for honest debate and promised that the government would not interfere with the deliberations. But that was not to be. Ministers Murungi and Chris Murungaru of the national security docket did not hide their contempt for delegates whom they dismissed as unable to make a constitution.

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.