Draft law: A power sharing and devolution blueprint

The draft constitution was unveiled on Tuesday, kicking off a month of public debate on how Kenya will be governed in future. The document proposes wide-ranging changes, including creating a presidency with fewer powers, a prime minister with real power, government at three levels and an national parliament with two chambers.

To set the stage, the Committee of Experts used a video of the election violence to remind the assembled leaders and the public why it was necessary and urgent to reform the government. The video showed, in gory detail, a mob hacking a man to death. It brought tears to the eyes of many of the hundreds of people who attended the launch.

The giant ballroom of the Kenyatta International Conference Centre was deathly silent as the audience was transported to a shameful past. “The time has come for Kenya to make hard choices, just like we have made hard choices when coming up with the draft. We must read and debate this draft with the reality of what happened last year in our minds,” said Dr Ekuru Aukot, before the video was played.

The meeting was attended by top government leaders, among them Prime Minister Raila Odinga, Vice-President Kalonzo Musyoka and Justice minister Mutula Kilonzo. Other ministers as well as MPs also attended. A new constitution was the best way to give the country a new beginning, Dr Aukot told the gathering.

The committee’s vice-chairperson, Ms Atsango Chesoni, spoke about Kenya’s quest for equitable democracy, stretching from the drafting of the country’s first constitution in Lancaster. She also honoured Kenyans who lost their lives in different eras including the Saba Saba riots, the 1997 elections, the Wagalla Massacre and the aftermath of the 2007 elections.

She said the country had the opportunity to atone for all the suffering by ensuring that a new constitutional order was in place before the 2012 elections. The committee’s chairman, Mr Nzamba Kitonga, described the document launched yesterday as “a working draft to facilitate dialogue among Kenyans”.

“Kenyans have for over two decades demanded a new comprehensive constitution. This is because even the minimum reforms that are now been referred to as stabilising reforms have only gone to mutilate the current Constitution further,” he said. He warned against taking the same path as the 2005 referendum which he said left “no winners but a country that was polarised”. He appealed to Kenyans, especially the clergy and the politicians, to approach the debate soberly.

On the executive, which is contentious, Mr Kitonga said Kenyans wanted to continue electing their president but have a prime minister to manage the everyday running of the government. They also expressed the need to have a parliament that would offer the necessary checks and balances.

“The document we unveiled before you has tried to respond to these needs by creating a dignified, stately executive presidency with sufficient authority to oversee, unite and protect the country but without the baggage of the day-to-day running of government which previously exposed the office to abuse and misuse of power,” he said.

The team tried to come up with a draft largely acceptable to all Kenyans and while there were “voices of disquiet”, particularly with regard to the kadhi courts, Kenyans had not categorised it as a contentious issue as long as it remains “in the current constitutional form.”

At a press conference later, Mr Kitonga said the country should have a new constitution by April if the timeline after the launch is followed. The review experts identified 10 principles to guide the process that will culminate in a document that will among other things: unite and strengthen Kenya, constrain executive power, decentralise power, avoid acrimonious elections of winner-take-all, ensure a stable and peaceful country.

After the one-month debate, the experts will have 21 days to incorporate the views of Kenyans in the draft. They will then turn it over to the Parliamentary Select Committee on the constitution leaving the quest for a new constitution to politicians.

Prime Minister Raila Odinga promised to “read very meticulously” the draft and “offer views along with other Kenyans.” He told the gathering that Priscilla Abwao, the only woman delegate at the Legislative council (Legco) at Lancaster House in 1962, died on Tuesday morning.

A minute of silence was observed in her honour. “It is time to bite the bullet and provide Kenya with this much-awaited constitution. Let us remember the heroes of the second liberation. Let us not disappoint them. Let us continue with the journey to the mountain top and plant the flag of liberation,” he said.

He asked the public to read the document with an open mind and give suggestions to be included in the final draft. “As we debate the draft, let us not suffer from nostalgia that this is how it has been done, let us not be tied to what we have known but we should be ready and willing to accommodate each other’s views,” he said.

Justice minister Mutula Kilonzo thanked the Committee of Experts for its work despite “the enormity of the task, the limitation of time and a constraining environment.” He said the committee’s gesture was a “testament to their commitment to the process.”

In the draft, the PM as the head of government, will nominate and chair the Cabinet while the president will be Head of State and Commander-in-Chief of the armed forces. He will also chair the National Security Council. The document also proposes that Kenyans can hold two passports, that there will be a Senate (Upper House) and a National Assembly (Lower House).

According to the draft, half of the Cabinet members should be drawn from outside Parliament. The draft also retains the kadhi courts in their present form. On devolution, the draft proposes a three-tier approach to governance: national, regional and county governments, which will be independent of each other and will manage their own budgets.

Kenyans can channel their views to the committee through email, letters or by posting their comments on the Committee of Experts’ Website, www.coekenya.go.ke.

For more information, they can contact the committee through the following e-mail address: [email protected]