Proposed laws will make it easy for MPs to remove President from office

The draft constitution has made it easy for Parliament to remove the President from office through a vote of no confidence by divorcing the term of presidency from that of MPs.

In effect, passing a vote of no confidence against the President will not, as is in the current constitution, bring to an end the term of office for MPs.
The current provision where ending the term of the President means dissolving Parliament has acted as a deterrent for MPs to censure the President even where there are good reasons to pass such a motion.

However, to safeguard the President from baseless censures, the process has been made more elaborate by requiring that the Senate must vote to uphold or reject such motions.
To pass, the motion must garner at least a two-thirds majority of all the members in each of the two houses — the National Assembly and the Senate.
Before voting, the Senate is required to constitute a special committee of 11 Senators to investigate the allegation against the President. And to initiate such a motion, a member will need to be supported by at least a third of all the members in the National Assembly.

The President will be censured only on three grounds; if he or she seriously violates the constitution or the law; if he or she is suspected to have committed a crime under national or international law; and for gross misconduct.

All such motions shall be initiated in the National Assembly. If they secure a two-thirds majority, the Senate is to convene within seven days to hear the charges against the State President.

The Senate is then to vote whether to appoint an 11-member special committee to investigate the matter. The committee shall have 10 days to investigate the matter and make a report to the Senate.

Found guilty

In a departure from the current dispensation, where the President can only appear before the National Assembly to defend himself, the President will have the right to either appear in person or appoint lawyers to represent him before the special committee during its investigations.

If the special committee reports that the President has no case to answer, the President will continue with his duties as if the National Assembly had not voted.

If the President is found guilty, the Senate shall then convene to vote on the motion and if the motion passes by two-thirds, the President shall cease to hold office.

Meanwhile, retired President Daniel arap Moi has declared his opposition to the sharing of executive authority between the Prime Minister and President as proposed in the harmonised draft constitution.

Mr Moi said the proposed arrangement amounts to the creation of two centres of power, adding that this would make it difficult for the country to be run efficiently.

He said vesting executive power in a popularly elected President, combined with the establishment of sufficient checks and balances through Parliament, would be the best option for Kenya.

“There are checks and balances that can be in institutions such as the proposed upper house and other institutions,” Mr Moi said.

Imperial presidency

The retired President enjoyed executive power during his 24-year rule, mainly due to amendments to the constitution that ended up creating what is now referred to as the imperial presidency.

The powers of the presidency are cited as one of the reasons the seat is coveted, leading to divisive politics that led to the violence that followed the 2007 General Election.

The retired President has also prepared a three-page memorandum he said would be presented to the Committee of Experts.

He said “certain parts” of the proposed laws are good and others contentious and these should be dealt with by the time a final draft is produced and put to the vote at a referendum.

“There will be discontent if some people feel their needs have not been addressed,” Mr Moi said.

Speaking to the press at his residence at Kabarnet Gardens near Kibera, Mr Moi also opposed the scrapping of the Provincial Administration and the creation of regional governments to replace them.
Debate on the draft constitution is set to end in 15 days and has been dominated by the power vested in the presidency and the office of the Prime Minister.

Under the current law, the President has a wide array of powers. The creation of a Prime Minister’s position, who supervises government functions, has somewhat whittled them down.

Under the proposed law, the President’s powers are limited and he will mostly act on the advice of the Prime Minister and the Cabinet.

Parliament will have to endorse his decisions and the Prime Minister will have greater say in nominating Cabinet ministers, deputy ministers and top civil servants. The President will be the Head of State while the Prime Minister will be the Head of Government.

The President will retain many of the trappings and privileges of office — he or she will still live at State House, preside over national functions and have a motorcade with outriders.

In his new role, the President will be the symbol of the country’s unity.