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Constitutional Referendum Part II

A few weeks ago I attended a workshop on the proposed new constitution that was sponsored by Friedrich Ebert Stiftung. The forum was free and open to the publc. The workshop focused on 6 thematic areas of the new constitution – Representation, Women’s Issues, Devolution, Land and Natural Resources, Media, Executive Powers and Youth. The aim of the workshop was to look at the Wako draft in light of what the different stakeholder (I hate this word but you can’t avoid it) groups involved in Bomas wanted and in light of the current constitution. What follows are some notes I took at the workshop.

After an overview of the topics to be discussed during the workshop, the first panelist to present was Paddy Onyango who works with the Citizens’ Coalition for Constitutional Change (4C’s). He has been involved in the movement for a new constitution from the very beginning and is a veteran of the Nyayo House torture chambers (an aside: read “We lived to tell” for survivors’ accounts of the Nyayo House torture chambers…people we have come a long way, lets not forget that even as the country struggles to tackle with unfinished business).

Paddy Onyango spoke about Presidential/Executive powers. Here are the notes I took during his presentation:

– Key question to ask is why Kenyans wanted a new constitution when they went to the streets. The main issue was the extremely strong presidency/concentration of power in the executive and the lack of checks and balances. We had and still have a dual system of development and justice – one for the rich and one for the poor. Those who could benefit were those who supported the president.

– The goals of the movement for constitutional change were: reconstructing the Kenyan State; ensuring that the people remain at the center of the review process; ensure that the process was lawful and legitimate; wanted to bring not just regime change, but also systematic change.

– What kind of constitution was expected out of the process: a product that entrenches the sovereignity of the people; and constitution that would end ethnic chauvinism of the political elite.

– His thoughts on the Executive in proposed constitution: the Executive remains a demi-god; think about allocation of resources, state of emergency etc. still controlled by the executive; there is a danger of retaining ethnic hegemony

– When reading the Kilifi/Wako draft look at where the words “may” versus “shall” are used (trust the lawyers!) when it comes to Parliament’s checking and vetting power…those who claim that Parliament has teeth under the Wako draft have not read the draft closely.

– Under the Kilifi Draft, the Prime Minister is nothing more than the leader of government business and can be fired at any time on the whims of the president

– As for impeachment, under Bomas the lower house would originate the accusations, senate would do the hearing. Under the Kilifi draft, first there is no bicameral legislature so the process is completely different. There is no due process since one body is responsible for bringing forth the accusations and conducting the “trial”.

– The Kilifi/Wako draft is dangerous in the absence of a benevolent dictator.

Here’s the 3-part comparison on Executive powers…again cribbed from the FES document.

1. Current Constitution
– President is both the head of state and government. All public servants serve at the pleasure of the president.
– Vice President has no defined roles, besides being principal assistant
– Presidenct can hold office in a political party.
– The President cannot be impeached. Parliament can pass a vote of no confidence by a majority of all the members but the president does not have to leave office and can dissolve parliament instead.
– Executive consists of the President, V-P, Ministers and Assistant Ministers.
– No Prime Minister.

2. Bomas Draft

– There was to be power sharing between the President (head of state with delineated powers) and the Prime Minister (Head of government).
– Executive authority was to be vested in the President, the Deputy President, the Prime Minister, and Ministers, all of whom, in the performance of their respective functions are required to “work in the harmony for the good of Kenya and the progress of the people of Kenya.”
– The Deputy President would have defined roles.
– The President and Deputy President are barred from holding office in a political party.
– President can be impeached on the motion of 2/3 of the national assembly.
– Prime Minister is head of government with defined powers.
– Prime Minister is to assisted by 2 deputy prime ministers and ministers appointed by him/her.
– President cannot dismiss Prime Minister at will.
– Key appointments would have required parliamentary approval.

3. Kilifi/Wako Draft

– The President is both the head of state and head of government (no power sharing). Has sole executive authority.
– The Prime Minister is merely the Chief Minister/first amongst equals.
– Key appointments will require parliamentary approval.
– There will be a deputy president with defined roles.
– President and Deputy President are barred from holding office in a political party.
– President can be impeached on the motion of over 50% of the members of the national assembly.
– Prime Minister is assisted by 2 deputy prime ministers and ministers appointed by the president.
– President can hire and fire the Prime Minister at will.

Part 3 to follow…leave a comment if anything needs clarification.

4 comments to Constitutional Referendum Part II

  • Just to point out; I was looking forward to your dissertation, part II like a kid in a candy shop.:oops:

    You infer to the very core of this struggle that has been lost in a myriad of obscure sycophant hallucinations in support of the divergent. Indeed the streets became battle scenes for a number of reason but principal being the power of the Executive. The Bomas draft does reflect and capture the context of our displeasure and therefore a drive for change.

    Furthermore, the bill of rights, perhaps the only bright spot in this darkness was somewhat watered down by the Wako draft. For instance Chapter 6, section 43 (disability act) plays high and mighty. Outrageously, the government is not obliged to ensure that these guidelines are entrenched into the mainstream. This is what I mean. A building does not have to accommodate accessible amenities that will allow a person(s) with disability to access it without seemingly ‘shutting them out’ by construction obstacles. The government will not prosecute such an owner for discrimination; Period.

    On social security, section 60; it is not mandatory for the government to hand out welfare for the least fortunate yet it is their right to welfare. Such conflicting language or intent for that mater is insincere and goes way against what the Bomas draft intended. As we can attest, our legislators seem oblivious even to this basic need.

    That said; where do we go from here? I know what majority of my kin folk will do; we’ll shove it down their throats. We’ve waited 40 plus years, by no means is it tough to wait a few more for a proper document.

    My intent was to be brief. My apologies Ory.

  • Very gooood project.

  • steve

    Why do we have this war on majimbo? It seems like the proponents of this type of governance are confused about the type of majimbo they are telling kenya they want to implement. on the other hand the opposers of the system seems to have a preconditioned type of majimbo they are using to scare kenyans from it.
    I think the pronents should educate kenyans on this type of governance and stop assuming they dont have a misconception of the the same.

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