The Committee of Experts dropped one level of devolution due to public outcry over the cost implications, a report presented to the Parliamentary Select Committee indicates.
The report says an analysis of the public views showed that there was concern over the potentially large number of members of the Legislature and recommended that this should be reduced.
The public also suggested that the 74 counties proposed in the first draft were small units which will lack resources to govern effectively or to provide checks on the exercise of power at the national level. As a result, the CoE reduced the levels of devolution to two and reduced the number of counties to 47 and did away with the regions proposed in the first document. This effectively reduced the number of members of the proposed Senate by at least 50 senators.
The number of women who would have received direct entry into the national assembly also reduced from 74 to 47 under the new devolution structure. There were also submissions that the proposed devolved units are not rationalised in terms of population, geographical features and command of resources.
“In accordance with the majority’s preferences, the levels of government are reduced to two: national and county. This responds to concerns about the role of regional government and the cost of administration... the Districts enacted in 1992 by The District and Provinces Act have been provisionally adopted as proposed counties,” the CoE report on the public views presented between November 17 and December 17 says.
The report shows that the public supports a bicameral legislative body comprising of the National Assembly and the Senate. There were proposals that some provision for Mixed Member Proportional Representation in electing members of the Legislature.
The public also wants educational qualifications for MPs be provided for in the constitution and the roles of the Senate and National Assembly clarified. In addition, the public wants to recall their representatives but calls for an elaboration on the ways to do that.
“In considering these views, the Committee took the view that whilst appreciating the desire for a lean parliament the exact number of MPs cannot be limited by the constitution as it will require the completion of the review of constituency boundaries,” CoE reported to the PSC.
The experts also provide for mixed member proportional representation as a way of securing representation for women, marginalised groups, youth and persons with disabilities. The National Assembly will continue to play its legislative role while the Senate will mainly provide an institution for the principal representation of the interests of devolved government.
The report indicates that more than 95 per cent of submissions were related specifically to the nature of the Executive organ of Government contained in the Harmonised Draft Constitution. The analysis of these submissions shows that Kenyans remain as deeply divided on the nature of the Executive as they were when the committee held public hearings on contentious issues across the country.
The public expressed widespread concern that the structure of the executive in the Draft is ambiguous, and would be unworkable because it could lead to frequent tensions between the President and the Prime Minister, especially when they come from different parties.
A report by a technical team at the CoE that analysed public views on the draft shows that Kenyans do not favour a hybrid system of government. The report says that most Kenyans told the committee that the hybrid system they had proposed was ambiguous and unworkable.
The document shows that recommendations from organised groups indicate that opinion is divided between the three systems of government. These submissions as well as those presented by individuals however indicate that whoever holds executive power should be directly elected by the people.
“Preference is for the retention of a president and a prime minister in the constitution with adequate checks and balances between the two. It is also largely recommended that whoever wields executive authority should be directly elected by the people,” the document used to prepare the draft presented to the PSC indicates.
The report goes on to explain that Kenyans want the president to appoint and chair the Cabinet and also control parliamentary calendar regardless of the system of government settled on. “In considering these views, the committee stands by its original assessment made after holding public hearings that a Presidential or a Parliamentary system would polarise the country,” the experts told the PSC.
Kenyans want the number of ministries capped at 18 and the number of ministries at any one time not to exceed 20. They have proposed that members of the Cabinet should be non-MPs appointed by the President subject to parliamentary approval.
A majority of those who made submissions also want the Provincial Administration retained to help the government exercise authority at the grassroots. The Committee of Experts was told that the Attorney General be appointed for a term of five years and not indefinite as it is currently. AG Amos Wako has been in office for nearly 20 years.
However, the State Law Office recommended that both the AG and the Director of Public Prosecution hold office for a term of eight years each. It is proposed that the AG is head-hunted by the Public Service Commission who then recommend to the President and the Prime Minister three names from which they take their pick.
The Judiciary and permanent secretaries in their submission to CoE opposed the proposal to retire all judges for fresh vetting at the commencement of a new constitution.