Ghai heaps praise on draft but cautions on devolution pace

• A former Constitution of Kenya Review Commission chairman, Prof Yash Pal Ghai, does not support a hybrid system of government. He chaired the CKRC from 2000 to 2004, before returning to the University of Hong Kong, where he teaches public law. He argues that only a few countries have had such a system, and they are not successful. Prof Ghai talks with SAMWEL KUMBA.

No I do not, for these issues are essentially constitutional issues, values and the framework for governance and must be in the constitution.

The proposals on the roles of the President and the Prime Minister have generated the most heat. Comment on the proposed structure and how it would work.

It is interesting that while ordinary people are interested in public morality, livelihood issues and those of human rights and human security, politicians have been obsessed by the structure of the Executive.

This may mean that Kenyans think of the constitution as reflecting values, rights, social justice and clean government, but politicians think of the constitution as an instrument of power and domination.

Politicians have provided no reasoned case for either presidential or parliamentary system. We must decide on the system of government not on the basis of the ambitions of politicians, but on principles of democracy, participation, accountability, and efficiency.

That is what we did in the CKRC and to some extent in Bomas. I support the Draft Constitution on this issue. We need to move away from the cult of presidency and the abuse of presidential powers which are responsible for so much that is wrong in our public life.

Also, as multi-ethnic state, we must aim for institutions which are inclusive, which the presidency is not.

Do you think such an arrangement is unique to Kenya? Where else has it worked without causing friction or confusion?

I do not support what is called hybrid systems. Only a few countries have them, and for the most part their experience has not been happy. The draft does not propose a hybrid system, but a relatively standard parliamentary cabinet system.

We should not call it a prime ministerial system, because general executive authority is not vested in the Prime Minister but the Cabinet, which is a collective decision making body. The debate on this issue has been very confused and unhelpful.

Do you see areas where it can be refined to remove grey areas?

Many! For example, presidential powers of appointments. And the whole area of devolution—very badly drafted!

Kenyans have only 30 days to debate the draft constitution and suggest amendments. Do you think the period is adequate?

Definitely not. People in some areas have not even received copies of the draft. They have to understand and analyse it, discuss it among themselves and give their comments to the committee. The draft is long and it is certainly not easy to understand without much study.

How does the current draft compare with the one that was rejected in the 2005 referendum?