Draft law: Alterations stir up hornet's nest

With some landmark amendments to the draft constitution, it will take time before the Parliamentary Select Committee convinces some Kenyans that they did not exceed their mandate. The question now is: Has the PSC deliberately set the stage for the rejection of the draft, just like it happened with the Bomas document?

Buoyed by the almost universal praise for their consensus on the troubling chapter on the Executive the previous week, the political class decided that they could as well write the bulk of the constitution on behalf of other interest groups. The political class is just one among many other interest groups such as women, religious groups, youth and teachers who have stakes in the constitution.

But some of the amendments made at the Naivasha retreat, which was basically meant to achieve a political settlement on contentious issues, were a radical shift from what was provided for in the draft. For, instance, the PSC made the proposed Senate inferior to Parliament, a suggestion that has no precedent anywhere in the world.

Already, there are murmurs, with some Kenyans wanting the PSC members to reveal the basis on which they made the major alterations to chapters that were not contentious, if not for political preservation and vested interests.

Kenya Land Alliance co-ordinator Lumumba Odemba said the PSC was meant to clean the rough edges on contentious issues but instead engaged in a war of political supremacy between the two leading parties. “What we saw was a gerrymandering with chapters and dealing with sensitive issues in a selfish manner. We only hope that the Committee of Experts will have the courage to correct some of the decisions that were inspired by political interests,” he said.

According to the Constitution of Kenya Review Act, 2008, the PSC, which represents the political class, had the mandate to reach a consensus on the chapters. By the time they assembled in Naivasha, the Committee of Experts (CoE) had identified only three chapters as contentious – the one on systems of government, another on devolution and finally the transitional procedure.

Thus, the PSC members will be hard-pressed to explain the basis on which they made some radical amendments to even chapters that were not contentious and which they were not supposed to touch. On the other hand, the CoE had a claim to moral high ground which they based their decisions on when they came up with the initial draft that included a hybrid system of government.

Their mandate was to harmonise the various drafts that were produced in the run-up to the 2005 referendum, to incorporate the views that were collected by the defunct Constitution of Kenya Review Commission and include the views they collected themselves.

They also had to take into account the delicate position Kenya has found herself after the post-election violence. The Abdulkadir Mohammed-led PSC had argued that they were just fine-tuning the draft and removing the superfluous sections that were making the document unnecessarily bulky.

One of the reasons why the Bomas draft was rejected is because it was mutilated. Even the Attorney-General, Mr Amos Wako, later put in his own wording that looked harmless but carried a lot of weight.

Current effort

Unlike the Bomas process that was left entirely in the hands of politicians after the close of the constitutional conference, the law governing the current effort ensured that politicians do not have the sole power of what goes into the document. Section 29 (1) of the Act says: “If the Parliamentary Select Committee reaches agreement on the draft Constitution, the Committee of Experts shall revise the draft Constitution taking into account the achieved consensus.”

Once the changes have been effected by the CoE, Article 3 of the same section directs Parliament to debate it and approve the draft constitution without amendments and submit it to the AG for publication, or propose amendments to the CoE for consultation and redrafting.

Where the National Assembly submits the draft constitution to the CoE for consultation and redrafting, the committee shall, within seven days of receipt of the draft, “consider” the proposed amendments and submit the draft to the National Assembly. Section 30 mandates the AG to publish the draft but without any alteration, except for editorial purposes, in consultation with the PSC.