Draft law: Executive power shared out

The draft constitution drastically reduces the powers of the President and shares them with the Prime Minister and Parliament. It proposes that the next President exercises his powers and functions on the advice of the Cabinet and the approval of Parliament.

The draft proposes that a president, a prime minister and a cabinet will now exercise executive authority. However, the President has the authority to appoint and dismiss the cabinet including the Prime Minister, his deputy, ministers and their deputies. He may also dismiss judges of the superior courts and any other state or public officer whom the constitution requires him to appoint.

A major departure from the current Constitution is that the President will be required to seek parliamentary approval when making public appointments. During the launch, Committee of Experts chairman Nzamba Kitonga explained that contrary to popular belief, the proposed president was not ceremonial. The draft is proposing a “semi-executive presidency that unites the country”.

“The President will also have executive roles such as to make appointments which will be subject to parliamentary approval,” said Mr Kitonga. The draft proposes a president who is the head of state, commander in chief of defence forces and chair of the National Security Council.

With the approval of Parliament, the President may sign instruments of consent of the country to be bound by treaties and international agreements. The President will also need the approval of Cabinet to declare a state of emergency or a war.

The role of signing Bills into law also remains with the president under the proposals. In addition, the draft says, a decision by the state president under the authority of the constitution or of any legislation, shall be in writing and shall bear the seal and signature of the state president.

Serve two terms

The draft stipulates that the president will be directly elected in an election to be held on the Tuesday immediately preceding the 21 days before the expiry of the head of state’s term. One can only serve for two terms as president and a person who has continuously stayed in office for at least two and a half years shall be deemed to have served a full term.

The draft constitution also removes the age requirement of 35 years for one to be eligible to be president. However, such a candidate must meet the threshold set for election into the national assembly. The draft gives room for the president to be impeached by parliament through a motion supported by at least two-thirds of the members.

If at least two-thirds of the National Assembly approves of impeachment, the speaker of the senate will, within seven days, convene a meeting of the senate to hear charges against the president. The prime minister will be the head of government with the primary role of directing and coordinating the work of the ministries and the preparation of legislation, and is responsible to Parliament.

The PM will preside over Cabinet meeting and will be responsible for the nomination for appointment of public officers and ministers. The president will be required to, within seven days following the summoning of the National Assembly after a general election, to appoint as PM the MP who is the leader of the largest political party, or coalition of parties.

As regards Parliament, it proposes a two-tier chamber made up of the Senate and National Assembly. The Senate, which is meant to provide an institution through which devolved governments share and participate in the formulation and enactment of national legislation, will have one member each elected by counties. Each county assembly will act as an electoral college.

The Senate will further have two women each elected by the regions, a disabled person elected from the regions and a speaker. The National Assembly will have one member elected from each constituency, one woman representative from each county and seven representatives of disabled people and a similar number from marginalised communities.

The National Assembly will also have a speaker. The National Assembly could further have independent candidates if one is supported by at least 1,000 registered voters in the concerned constituencies. For the first time in Kenya, voters could recall their MP before the expiry of his or her term under procedures to be enacted by Parliament.

In the proposed changes, a Bill may originate from any House but a money Bill may originate only in the National Assembly. When a Bill has been passed by one House of Parliament, the Speaker of that House shall refer it to the Speaker of the other House. If both Houses pass a Bill in the same form, the Speaker of the House in which the Bill originated will, within seven days, refer the Bill to the President for assent. If one House passes a Bill and the other rejects it, the Bill will have been defeated unless it is a money Bill.