EXPERT COMMENT

The greatest tragedy from Naivasha was the mutilation of the Senate

The Parliamentary Committee at Naivasha made adhoc, chaotic changes to the COE draft

In Summary

• The Harmonized draft created a hybrid system of government with president and PM

• Naivasha threw out the proposal that CS be drawn from both parliament and professionals.

President Mwai Kibaki shows off the new constitution with a national seals during the promulgation of the new constitution at Uhuru Park 27-8-10.He is flanked by Attorney General Amos Wako Photo/Charles Kimani
President Mwai Kibaki shows off the new constitution with a national seals during the promulgation of the new constitution at Uhuru Park 27-8-10.He is flanked by Attorney General Amos Wako Photo/Charles Kimani

Do I support constitutional amendments?

Yes, I do and this is why. First, the 2010 Constitution was not singularly our document.  The Constitutional Review process was a bus with many passengers, conductors and touts all of whom had vested interests. 

The document that was singularly the product of the Committee of Experts was The Harmonized Draft, which captured the spirit of the Bomas Draft, the Kilifi Draft and the Wako Draft.  The Harmonized Draft was required by law to be submitted to the Parliamentary Committee on the Review of the Constitution in Naivasha.  The Naivasha committee made ad hoc, chaotic changes that altered some aspects of the design of the document.  A few examples will abide: -

First, it is at Naivasha that for the first time in Kenyan history that the idea of a pure presidential system of government was born.  It was never in our independence Constitution, the post-Independence amended Constitution, the Bomas Draft, the Kilifi Draft or the Wako Draft.  The Harmonized Draft created a hybrid system of government with powers cascading from an elected presidency to a Prime Minister elected by Parliament and two deputy prime ministers also elected by Parliament.

Two, Naivasha threw out the proposal that Cabinet ministers be drawn from parliament and professionals.  This model was recommended to enable the President to tap expertise across the board and accommodate political interests.  Countries are about politics.  But importantly, the Cabinet would be answerable to the President and Parliament.  This is a cardinal requirement in the delicate system of checks and balances.

Third, Naivasha also threw out the Office of Leader of the Official Opposition.  This is the ultimate symbol of checks and balances in governance.  A person and a party that has the support of over 5 million voters cannot be overlooked just because s/he or it lost the election.  Such a party must be given the honour of oversight in governance and the right to constitute an alternative government.  The leader of such a party would be in Parliament to lead his troops.  In the wake of “the handshake” the importance of this office is clear to all and sundry.  There must be visible oversight.

Four, Naivasha in its wisdom also overrode the proposal that a presidential candidate could simultaneously contest a National Assembly or a Senate seat.  Again these provisions were purposive.  The idea was to create harmony in governance by ensuring that party leaders seat in parliament with their troops to formulate and guide coherent responses to public policies and legislation.  We now have an awkward situation where opposition leaders consult with their MPs and senators in hotels.

Five, the greatest tragedy from Naivasha was the mutilation of the Senate.  For the first time in the history of the architecture of constitutions in the world, a Senate was designated as a “lower house”.

 Even during the Roman Empire, the Senate was designed as the ultimate stamp of the peoples' authority. We had drafted a seamless legislative system where bills and oversight reports would originate from the National Assembly and proceed to the Senate for approval, amendment or rejection.  The bills would then proceed to the presidency for assent.  It was envisaged that the system would provide quality legislation and microscopic oversight. 

We tried to repair the damage done to the Senate by giving it some powers particularly in relation to devolved governance.  We also created mediation committees to avoid constant confrontation between the two Houses.  This has not worked. Both Houses are engaged in constant combat, deadlocks, the creation of copycat committees, copycat oversight and verbal clashes.

These are some of the Naivasha outcomes which have come to haunt the nation.

There are the other matters that have arisen unrelated to the Naivasha debacle.  The late Prime Minister Harold Wilson once quipped that “A week in politics is a long time” I say nine years and two elections in a country’s politics is a very long time.  It is not humanly possible to anticipate every situation in Constitution-making. 

We, for instance, created a Judicial Service Commission with the majority being judicial officers.  We did not foresee they would use their majoritarian numbers to give themselves a dominance and a head start in decision making.  The recent recruitment of Court of Appeal judges from within the Judiciary to the exclusion of the Bar and the academia was an eye-opener.  Furthermore, the idea that judges can hear disciplinary cases against their colleagues or themselves has elicited grave misgivings.

It has become necessary to separate the Judicial Service Commission from the Judiciary.  We may consider the Ugandan model where retired judges, Senior Advocates not in active practice and eminent respected members of the public comprise the JSC.

It is necessary to consider a situation where a governor is charged with a crime relating to his office that he be suspended and his deputy assumes full control.

The powers of an acting governor have to be clearly defined.  There is need to avoid placing too many restrictions on an acting governor.  He must be able to run the office seamlessly and with confidence.  But we must also avoid situations where he attempts to undermine all the work of the governor and tries to remove all his appointees for no good reasons.

The other identifiable gap is imposing timelines on the presidency.  The presidency has been delaying in making many formal appointments.  This has affected the operations of some commissions, boards and the JSC.  At one-time, court orders had to be issued directing the President to appoint Judges.  We had not anticipated such delays would arise.  Timelines and default clauses must be imposed upon the presidency in executing its mandate.

There has been a quest to allocate more resources to counties.  Many figures have been given e.g. 35 per cent, 15 per cent and 50 per cent.  Unfortunately, these have no scientific basis.  We need to engage economists to assess the realistic budgets of the national and county governments.  This is a gap that can actually be addressed through legislation because figures keep on changing.

Statements have been made to the effect that the expansion of the Executive is meant to benefit a few individuals.  Such assertions are misleading.  It is not possible to create an elective office then somehow give it to an individual.  There has to be an electoral process. In fact, a general election culminating in the direct election of the President and the election of the Prime Minister by Parliament.  It is, therefore, misleading and scare-mongering to say the creation of such offices will benefit specific individuals.  If they are properly and legally elected, so be it.

The other misleading assertion is that the constitution should not be amended before its implementation is completed.  Implementation had short term and long term phases.  Certain laws, actions and policies needed to be immediately undertaken to jump-start the enforcement of the constitution.  These comprised, for example, the appointment of a new Chief Justice, the vetting of judges and the passage of devolution laws etc.  In the long term , about over 600 pieces of legislation need to be either amended or repealed and reenacted.  Many policies and administrative actions also need to be reviewed.  This is a meticulous and painstaking process.

It will take very many years for the implementation of the constitution to be completed.  Implementation of the constitution is not an event.  It is a long drawn permanent process.  It would be unfair to fail to address glaring concerns with regard to constitutional amendments because implementation has not been completed.  Both processes can proceed concurrently.

 Although the BBI is a welcome move there are valid concerns that it is not anchored in law.  It is also meant to address a broad spectrum of matters and not constitutional amendments alone.

Therefore, constitutional amendments proposed by the initiative, Punguza Mizigo, the Council of Governors, religious groups and all other stakeholders will have to be placed before Parliament whose duty it is to develop the way forward.

The writer was the Chairman of the defunct Committee of Experts that midwifed the 2010 Constitution. The document was his submission to the National Assembly Committee on Implementation of the Constitution