Divided MPs begin debate on draft laws

Kenyans face the prospect of another contested referendum as MPs started debate on the draft constitution without consensus.

Torn apart by competing political interests, the two partners in the coalition government — the Orange Democratic Movement and the Party of National Unity — retreated to separate meetings to lay strategies for debate.

None has the numbers in the House to push through amendments to the draft and it looks increasingly likely that the document will be passed without any changes.

Election violence

Those opposed to certain clauses in the draft could resort to campaigning against it. A similar contested referendum in 2005 created conditions for the violence during the election in 2007 in which more than 1,000 people were killed and half a million evicted from their homes.

On Tuesday, President Kibaki met a core team of ministers and advisers at Harambee House, while Prime Minister Raila Odinga held a Parliamentary Group meeting at Orange House. The differences between the two parties are believed not to be about issues of law per se, but a jostling for political advantage.

Disagreements centre on the chapters on devolution, transitional clauses, land ownership and ethnicity which might decide the fate of the draft during the referendum.

Debate on the draft got under way in the afternoon when Parliamentary Select Committee chairman Mohamed Abdikadir moved the motion. Mr Mohamed, his deputy Ababu Namwamba and former Constitutional Affairs minister Martha Karua asked the House to pass it.

But Roads assistant minister Wilfred Machage said he would only support the draft if a new clause guaranteeing minority rights was included.

Failed to agree

On Monday evening it began to emerge that an informal meeting of MPs, popularly known as the Speaker’s Kamukunji, scheduled for Tuesday morning would not take place after all as MPs failed to agree on the amendments during their four-day retreat at the Kenya Institute of Administration (KIA).

President Kibaki and Mr Odinga were to attend the meeting, National Assembly Speaker Kenneth Marende had informed MPs at KIA.

However, on Tuesday, the President met PNU coalition core team which included deputy PM Uhuru Kenyatta (Kanu boss) and Cabinet ministers George Saitoti (PNU chairman) and Kiraitu Murungi (secretary general). Present also during the three-hour meeting were his advisers Kivutha Kibwana and PNU consultant Peter Kagwanja.

At stake were issues of devolution and representation, and some sources said they resolved to support a two-tier government (national and county levels). However, the sources said, they declared their readiness to have the counties increased from the current 47 to 80.

The same sources claimed that it was agreed that any move to create a three-tier government would be opposed since it was costly and the public had vetoed it.

At the Orange House, the opposite was agreed. ODM MPs said they would seek to amend the draft to increase the levels of devolution from two to three.

Party secretary general Anyang’ Nyong’o said they would lobby MPs to attain the required numbers (145) to pass the amendment.

“We want to emphasise that ODM upholds its manifesto and will move an amendment to the draft to have in place three levels of government—national, regional and county,” he said.

The three-tier government will be made up of 25 regional governments and between 74 and 80 counties.

On Tuesday, Justice minister Mutula Kilonzo attributed the KIA deadlock to “a strange behaviour” of MPs and tribalism. He also blamed PNU and ODM for the failure to agree and said: “I can live with the draft as it is.”

After failing to strike a deal at KIA and the subsequent cancellation of the Speaker’s Kamukunji that could have resulted in a common position on clauses that need to be amended, MPs are now debating the CoE draft under strict House rules.

For any amendment, the movers would have to garner a 65 per cent vote (145 MPs) to push through the changes — a tall order in the deeply divided House.

However, if the lobbying fails, they are likely to pass the draft in its current form and wait for it at the referendum where reports have indicated that plans for a No and Yes campaigns are taking shape.

This is because the Constitution of Kenya Review Act does not provide for MPs to reject the draft in its entirety.

Said assistant minister Peter Munya: “If we fail to make any amendments to the draft, we will leave it to the public to decide. You should not be surprised to see No and Yes campaigns happening.”

Assistant minister Aden Duale said the draft had to reflect the wishes of the people and any decision to deny them their right would be opposed.

“I support a constitution that takes care of the interests of my people and if it doesn’t, then they will vote against it. A constitution is about allaying fears of communities that have suffered for long,” he said.

If MPs pass the draft, it would be taken to the Attorney General for drafting and thereafter the referendum where Kenyans will give their verdict.

The referendum is scheduled for July.

Additional reporting by Alphonce Shiundu