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.

In brief, this draft proposes a parliamentary system and devolution which were excluded by those who instructed Wako. In 2005 I wrote 15 articles comparing the Bomas and Wako drafts — mostly to the disadvantage of the latter.

What is the best way to build consensus on contentious issues to prevent a repeat of the 2005 debacle?

Keep politicians out of it! They have a conflict of interest, and cannot be trusted to protect the national good.

It is hard to have a consensus when personal interests dominate. Paradoxically, it is easier to get consensus if differences are of policy and decision makers are honest and open to reason.

In your opinion, what issues can make or break this draft?

It seems that politicians are mainly concerned with structures of power and access to the state, and since they are in the driving seat, the structure of the Executive, where power, money and patronage are located, that may remain the most contentious. Devolution is also about power, and already a campaign to delegitimise it has begun.

How would Kenyans block the political elite from hijacking the draft debate?

Kenyans must try to understand the draft, and must give their view to the committee and to the public. If enough Kenyans support the approach and principles of the draft (even if not all its details), and make this known to the public and to their MPs, politicians might hesitate to disregard it.

What is the risk of the Yes or No referendum next year?

The referendum will be divisive, and if there is a no vote, we shall be stuck with the current Constitution which we have been trying for nearly 20 years to remove.

Do you think the three-tier devolved government is adequately thought through, particularly in terms of its structures, workings, relationship to the centre and financing?

I strongly support the principles and objectives of devolution as outlined in the draft. But I have serious reservations about the details in the draft.
In my view the whole chapter needs careful consideration. I proposed that to the committee in my submission in July. I also believe that this complex topic should be approached gradually and that the constitution should deal with the principles and set up a mechanism to refine it and bring it into operation over a reasonable period.

Any observation on the workings of the bi-cameral legislature?

I think we need a second chamber, if we are to have meaningful devolution. But the way the senate is conceived in the draft shows considerable uncertainty and much confusion.

For a new constitution to take full effect even if it passes the referendum, over 70 separate pieces of legislation will have to be passed by Parliament. Do you think that this might create fresh gridlock further down the line?