Constitution is not out of the woods yet

The consensus on the “pure” presidential system, though likely to cool down political temperatures, is set to face two major challenges.

The first is that Kenya, at only age 47, is adopting a system similar to that of the United States, which has taken more than 200 years to perfect. The challenge here is how to ensure that power is not concentrated in the presidency by empowering the Judiciary and the Legislature.

Secondly, the Constitution of Kenya Review Act, 2008, does not compel the Committee of Experts (CoE) to incorporate in their entirety the amendments made by the Parliamentary Select Committee on the Constitution (PSC).

The PSC also has the task of convincing fellow MPs and other interest groups that the agreement was the best political deal possible. According to the Act, the PSC was mandated to build consensus on the contentious issues. They included the system of government, the Executive and the Legislature.

Transitional arrangement

Secondly, the committee was to deal with devolution and the transitional arrangement. The task involved when and how the new constitution comes into effect and what happens to current office holders such as the President, the Prime Minister, MPs, and the Judiciary.

Some of the PSC members are likely to be accused of seeking to secure a constitutional environment favourable to their 2012 candidacy. They may also be accused of giving the impression that they have arrogated themselves the role of writing the constitution for the country.

Still, the agreement on one system of government is a major step towards the realisation of a new constitution. In Africa, the “pure” presidential system has only been experimented in Mozambique. The biggest challenge is how to develop institutions to keep the Executive in check.

The US model has a history of more than 200 years of independence and more than 1,000 court rulings that have enriched the constitution. They did not, for example, need to change the constitution to incorporate the ruling on the right of African Americans and women to vote.

According to nominated MP George Nyamweya, it will not be difficult to empower these institutions once Kenyans agree on one system. “It could have been difficult if we had a stalemate. Secondly, the fact that the president and the ministers will not be members of Parliament frees the hands of MPs to criticise the government without thinking about their positions in the Cabinet,” he said.

But dissenting voices like Immigration minister Otieno Kajwang’ believe that the presidential system will be more or less a replica of the current Constitution with cosmetic changes. “Kenyans should just come out in the open and agree that they follow individuals and forget about referring to themselves as a multiparty democracy.

Secondly, a referendum presupposes that there are two or more different opinions. If we have a consensus, then the politicians have decided on behalf of the people and there is no need for a referendum,” he said. Another challenge is how to convince the CoE to go by the political settlement of give and take.

The law guiding the current review process was crafted to block politicians from hijacking the review process following the experience with the Bomas process. The Act only states that the committee shall “consider” the proposed amendments and return the draft to Parliament for approval.