Contest between President and PM biggest hurdle to new law

The draft constitution will be officially unveiled on Tuesday in an atmosphere which does not bode well for its eventual passage through a referendum. The Committee of Experts delayed publication of the draft by a week as it sought the endorsement of the main political forces.

However, the Cabinet retreat in Mombasa over the weekend managed only to expose the fault lines on one of the key contentious issues — who between the President and Prime Minister will wield executive authority.

Labelled as the “harmonised” draft constitution, the new document strives to find the middle ground between the positions taken by President Kibaki’s PNU and Prime Minister Raila Odinga’s ODM in submissions made to the Committee of Experts, positions that roughly reflected the 2005 referendum divide between the Banana (Kilifi Draft) and Orange (Bomas Draft) camps.

On the sticky issue of executive authority, the new draft leans to the Orange proposals for a Prime Minister elected by Parliament to wield executive authority as head of Government; while the President must still get a popular mandate but is relegated to a ceremonial Head of State.

Although little attention has been paid to most other contentious issue, including the proposals on devolution which clearly needs more thought, any replay of the 2005 divide even on the single issue of the Executive has the potential to spell doom for the new constitution.

In 2005, it was not so much the finer points of the draft presented for the referendum that mattered, but merely the political showdown between the Kibaki and Odinga wings of Government. After losing at the referendum, President Kibaki dropped Mr Odinga and the then NDP ministers, dissolving the coalition of the day.

The two sides came together in another coalition in the aftermath of the disputed 2007 elections, but this time under a formal legal structure with Mr Odinga as the Prime Minister.

At this stage the differences over the new constitution have not taken on the intensity of 2005, but if they are played up then there is the threat of history repeating itself. It was the divide of 2005 that manifested itself with such devastating effect with the 2007 elections.

It was in turn the post-election violence that forced the forced marriage of a power-sharing agreement and fresh resolve to carry through the reform process, including the search for a new constitution.

But politicians do not easily learn from history. Once again the daft constitution is not being debated on its own merit, but as if were drafted for a perpetual President Kibaki and a perpetual Prime Minister Odinga.

It was evident in Mombasa and elsewhere that PNU politicians, rooting for retention of an executive president were reacting as if the new proposals were designed to take power away from President Kibaki or whoever from their side might succeed him.

Those from ODM supporting transfer of executive power to a PM seemed to be under the impression that they were defending an office specifically created for Mr Odinga.

Until such misplaced attitudes are discarded, a compromise might be impossible and the elusive search for a new constitution might once again fall victim to the constant struggles for power.