Kiraitu spoils consensus party

After eight months of negotiations, a breakthrough in the stalled constitutional review process was achieved following the successful conclusion of a retreat at the south-western town of Naivasha by members of the Parliamentary Select Committee on Constitutional Review. The retreat, initially dismissed by some MPs as a waste of time, produced results that would have gone a long way in the enactment of a new constitution.

“I would like to report that today is a historic day for this country”, enthused Justice and Constitutional Affairs minister Kiraitu Murungi at the end of the retreat on 10 November. “We have arrived at a consensus on all the issues that have been dividing us. We are very happy that with this major bottleneck out of the way, the achievement of a new constitution for this country will soon be a reality”, he added. But only two days later, Kiraitu reversed his stand, vowing not to publish the consensus Bill.

The ruling National Rainbow Coalition [NARC] led by president Mwai Kibaki won the historic December 2002 elections on a series of reform platforms, key of which was the enactment of a new constitution within the first 100 days in office, to phase out the current one, which has undergone several amendments since 1963.

But 100 days came and went, and following intense pressure from the donor community, Kibaki promised to deliver a new constitution by 30 June, 2004. But that was not to be. Instead, there was a moment of anticlimax on 3 July when Kenyans – led by the Bomas Katiba Watch lobby group, a motley of former constitutional conference delegates and a few MPs – took to the streets to protest the government’s failure to deliver the constitution as promised.

Significantly, the main bone of contention in the Draft Constitution, which was rejected by a section of the cabinet, notably those close to Kibaki, has been whether the country should adopt a presidential or a parliamentary system of government.

While LDP has always been in favour of a parliamentary system, as provided for in the draft constitution and the controversial Memorandum of Understanding [MOU], that the two factions signed prior to the 2002 elections, NAK has been rooting for a presidential system.

Amidst the sharp differences, the constitutional conference remained heavily politicized throughout its sitting. Ironically, the two factions have both shifted the stands they took in 2002 while presenting their views to the CKRC. As the secretary general of the then governing party KANU, Odinga supported a presidential system, an idea he abandoned soon after decamping to NARC.

On the other hand, Murungi, until recently a proponent of the presidential system, also took a different position in 2002. As the shadow Attorney General and Kibaki as the leader of official opposition, they 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”.

But all that changed soon after NARC assumed power. Matters came to a head on 15 March when the conference delegates voted to strip the president of his powers. The vote, which effectively made president Kibaki a ceremonial head, led to a walk-out by a section of the cabinet, led by Murungi.

Under the consensus arrived at in Naivasha, the parliamentary select committee agreed to retain an executive president as both the head of state and government. But in a spirit of give and take, the select committee agreed that there would be a Prime Minister in charge of co-ordinating and implementing government businesses and programmes. The system is modelled along the Tanzanian model of executive arrangement in which the president appoints the Prime Minister from a majority party.

The committee also agreed to have a two-tier power devolution system with the central government and counties. Tentatively, 30 to 40 counties were proposed. It also adopted recommendations calling for the scrapping off of the provincial administration. The proposals will however be subjected to debate in parliament and a national referendum.

The MPs who attended the retreat said the proposals were driven solely by national interest – the need to have a new constitution as soon as possible. “All the decisions were unanimously arrived at. We want to let the country know that we have done our job as required and provided leadership to the entire process”, said committee chairman William Ruto.

The meeting extensively discussed the contentious issues such as the Executive, devolution of powers, the Judiciary, the Legislature and the Bill of Rights. The report is being finalised and will soon be given to the Constitution of Kenya Review Commission [CKRC] and then tabled in parliament. “We have agreed with no fear of contradictions that the people’s recommendations prevail. We shall be proceeding to persuade the National Assembly to agree with us and adopt the document with minor amendments, then ask the AG to publish it for ratification in preparation for the referendum”, said Ruto.

Nominated MP Oloo Aringo, who is a member of the select committee said: “There are no losers here. It is a win-win situation. We put the interest of the country ahead of everything else and came up with what is good for Kenyans. We will have a president who will work under the supervision of the National Assembly which can impeach him if he violates the constitution or for gross misconduct”.

But now Kiraitu has refused to publish the Bill that stipulates that for parliament to amend the Bomas Draft, it requires the consent of 65 per cent of the MPs present and voting. It is for this reason that president Kibaki has also refused to assent to the Bill, which would have easily paved the way for the enactment of a new constitution.