Parliament to reopen early to discuss draft law

Parliament reconvenes in two weeks with the major task of debating the new Constitution.

President Kibaki Wednesday summoned the House early, just a day after anxiety had started building on the fate of the crucial document, whose date with Parliament as per the review timetable is February 25.

In a short brief from State House, the President recalled the MPs for the start of the Fourth Session of the Tenth Parliament on February 23 –five days after the Committee of Experts officially presents the document to the Parliamentary Select Committee on Constitution Review.

The Head of State also prorogued Parliament with effect from Wednesday officially bringing to an end the Third Session of the 10th Parliament. The State House dispatch quoted a Special Gazette Notice.

With the prorogation, the President officially wound up some pending issues that were still in Parliament’s in-tray, opening doors for them to be re-introduced in the House afresh.

Bills before the House will, however, not lapse as was the case prior to the revision of the Standing Orders. New Standing Orders came into effect on April 21 last year. Questions will have to be re-introduced afresh.

The PSC reached a political settlement in Naivasha a fortnight ago. The law gives MPs 30 days to debate the draft. If they pass it unchanged, it goes to Attorney General Amos Wako for publication.

However, if MPs amend the draft, they’ll have to forward the amendments to the AG who will work with the experts to redraft according to the wishes of Parliament. The AG has seven days to look at the proposed amendments and then forward them to the experts.

The CoE, in which the AG sits, will then have seven days to look into the proposed amendments and resubmit the draft back to the House.

If Parliament rejects the CoE’s recommendations, then the PSC and the CoE will have to meet to strike a deal. This meeting will involve several stakeholders — under the Reference Group — among them the clergy, workers and employers.

The law does not permit such a team to disagree and as such, it gives them seven days to reach a consensus and allow the CoE another seven days to redraft the contentious issues, before resubmitting the draft to the MPs.

The House will then have 21 days to endorse the draft and forward it to the AG for publication and a consequent referendum after 60 days.

The draft is currently being reviewed by the CoE in line with proposals made by the PSC after their 11-day retreat that ended in Naivasha last Thursday. However, emerging differences between the two bodies are threatening to scuttle the constitution review.

At the centre of the simmering row is whether the experts are obliged to accept all the recommendation made by the MPs. The CoE is said to have, on Tuesday, decided to isolate all the proposals that it felt should not be effected in the draft and then meet the PSC to try to iron out the differences.

“We met today (Tuesday) and will continue meeting as we study the proposals made by the PSC. We have decided to, from Thursday when we get down to the redrafting, isolate the issues that should come for further discussions between us and the PSC,” said one of the experts who sought anonymity.

However, a decision by the experts to ignore the political compromise reached in Naivasha may turn out to be risky. It is feared that it may trigger a confrontation with Parliament, which might lead to the shooting down of the proposed constitution.

While in Naivasha, the PSC identified potential disagreement between it and the CoE as one of the issues that may scuttle the review. However, the chairmen of the two bodies, Mohammed Abdikadir (PSC) and Nzamba Kitonga (CoE) have promised to work together.

The experts have indicated that they 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. The Act also indicates that; “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.”

According to Mr Kitonga, his team is required by law to adopt the Naivasha agreement on the four contentious issues. But though not compelled by the law to accept all other proposal, the experts may be morally obliged to do so.

Reported by Njeri Rugene, Alphonce Shiundu and Oliver Mathenge