CoE can alter Naivasha document

• WAY FORWARD: Kitonga says his team bound only by consensus reached by MPs on contentious issues, but on other matters the committee would have to discuss with PSC members to ensure review draft flows smoothly

Contrary to popular opinion, the Committee of Experts can alter or reject proposals by the House team on the draft constitution, except those touching on four contentious issues.

The experts had identified the structure of the Executive, legislature, devolution and transitional clauses as the contentious issues.

According to the Constitution of Kenya Review Act 2008, which guides the process, the PSC was required to deliberate and create consensus on the contentious issues as recommended by the experts.

Committee of Experts chairman Nzamba Kitonga says his team is required by law to adopt the Naivasha agreement on the four contentious issues.

“We are bound to the Naivasha consensus on contentious issues, but on these other matters, we would have to discuss with the House committee to ensure the document flows smoothly,” he told the Sunday Nation.

Mr Kitonga’s observation implies that his team is not compelled by law to accept proposals outside the bracket of contentious issues.

Senior counsel Paul Muite says the experts have a moral – not legal – obligation to accommodate the Naivasha proposals.

“The experts must look at the Naivasha proposals, but this does not mean that they must take everything on board,” he told the Sunday Nation.

The former Kabete MP argues that the Act is clear that the Committee of Experts is the “final decision maker” on the review. However, Mr Muite reckons that the politicians in Naivasha made critical decisions which the committee seems not to have gathered sufficient courage to confront.

“The politicians had a better sense of political dynamics and the need for consensus, unlike the experts who were academic and far removed from reality,” Mr Muite said.

The Act spells out the duty of the experts after the PSC deliberations. It 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.”

Starting Friday, the experts have 21 days to return the revised draft to the PSC which will table it in Parliament for debate.

The powers of Parliament in ongoing law review were felt on Wednesday when the PSC radically altered proposals by the experts.

The PSC proposals have received a mixed reaction, including claims that the 26-member team had overstepped its mandate.

PSC chairman Abdikadir Mohammed has defended his committee, saying they were operating within their mandate as set out in the Constitution.