The secret deals that MPs made to craft a draft law agreeable to different party and individual interests in the Naivasha retreat can be revealed.
Interviews with a cross-section of MPs in the 26-member Parliamentary Select Committee (PSC) painted a picture of talks characterised by intense political horse-trading culminating in the agreement struck at the end of the 11-day retreat at the Great Rift Valley Lodge.
At one point, a section of MPs mainly from the Party of National Unity (PNU) threatened to walk out of the talks following heated debate on the formula for creating additional constituencies, the Sunday Nation was told.
It took the efforts of the PSC chairman, Mandera Central MP Abdikadir Mohammed and interventions at various points by cabinet ministers Musalia Mudavadi, William Ruto, Uhuru Kenyatta and Moses Wetangula to save the talks from collapse.
Apart from representation, the chapters on the Executive, devolution and national security almost proved deal-breakers with members employing brinkmanship and last-minute interventions to save the process.
Trouble, the Sunday Nation learnt, started on Tuesday evening when a majority of MPs at the retreat shot down demands by some MPs to have densely populated areas get more constituencies while less populated ones would get fewer constituencies. This would have seen the number of new constituencies shoot up by over 100.
The MPs mainly from the PNU side insisted that Nairobi should have at least 25 constituencies, up from the current eight, a proposal that was rejected by the majority of the PSC members, prompting the proponents of this line of argument to threaten a walk-out.
The ODM side had maintained that the number of new constituencies be kept as low as possible so that they don’t become a burden to Kenyans.
To resolve the rift, the session agreed to set up a sub-committee of 10 members, with both ODM and PNU nominating four members each in addition to the chair, Mr Mohammed and his deputy, Budalangi MP Ababu Namwamba.
ODM nominated Mr Mudavadi, Mr Ruto, Lands minister James Orengo and his Tourism counterpart Najib Balala while PNU picked Deputy Prime Minister Uhuru Kenyatta, Gichugu MP Martha Karua, Ndaragwa’s Jeremiah Kioni and Turkana Central MP Ekwee Ethuro.
In the end, the talks were saved by the more moderate members on both sides and what members described as the tireless efforts of Mr Mohammed.
“It is true some of our colleagues almost boycotted the talks because we could not agree on the number of constituencies to be created but the matter was amicably resolved,” Mr Ruto told the Sunday Nation.
Mr Mudavadi praised MPs for finding common ground.
“We realised that if people took dogmatic positions, Kenyans would have to wait much longer for a new constitution and it is good news for Kenyans that MPs from both sides were flexible enough to find common ground.”
Mr Ethuro described the talks as tense and said breaking the stalemate on representation was a major challenge.
“A section of my colleagues were not happy and they made it known, but we sorted it out,” he said.
The Sunday Nation established that intervention of two experts who were called in to the PSC to advise on how to move forward on new constituencies was key.
Prof Francis Aduol, the Principal of the college of Architecture and Engineering at the University of Nairobi and actuary Johnson Sakaja helped to demonstrate that the perception that there was gross unfairness in distribution of seats was exaggerated.
“There was a feeling among the PNU members that previous rounds of delimitation (revision of electoral boundaries) had not been fair to some regions. The experts demonstrated that the deviations were not as dramatic as some thought. They also helped us to agree that a constitution should not contain specific formulae but should only have broad principles,” said one member of the PSC who cannot be quoted discussing PSC proceedings.
The sub-committee formed to break this stalemate also came in handy when the MPs disagreed over the Executive and devolution.
MPs interviewed described the tactics used by various sides to get their way during the talks. They told of how the PNU side asked for frequent “time-outs” (basketball jargon for a short break to consult with the coach) because they had a large team of legal experts who advised them at every stage.
On the ODM side, Mr Orengo and Mr Mudavadi frequently walked out to make calls to unidentified advisers. The man who pushed the PNU case most aggressively was reportedly Mr Kioni, who was in constant touch with the team of PNU legal advisers in Naivasha.
A PSC member told the Sunday Nation the ground was laid for consensus at the last Grand Coalition Committee meeting attended by President Kibaki and Prime Minister Raila Odinga at Harambee House just before the retreat.
At that time, ODM ministers surprised many when they said they had no problem with a presidential system of government.
That position was repeated by Mr Ruto at the Naivasha talks, leading to a speedy conclusion of debate on the Executive.
But ODM demanded reciprocation from the PNU side for this concession when debate on devolution began.
We understood that the ODM side demanded devolution based on 14 regions as specified in the Bomas draft.
This was rejected by PNU. MPs Mwangi Kiunjuri and Mr Kioni said there should be 23 regions. The members then grudgingly settled on 18 regions before they ultimately agreed on two tiers of devolution with counties as the primary units of devolution.
“It was give-and-take as ODM finally managed to have devolution of power entrenched in the Constitution,” said Cabinet minister Charity Ngilu.
Another area where the two coalition partners were forced to engage in horse-trading was on the chapter on national security.
Whereas ODM had insisted on the scrapping of the Administration Police altogether, thanks to its reputation for employing the discredited Chief’s Act to harass the ordinary Kenyan, PNU would hear none of it.
Mr Mudavadi pushed for a deal which would see the units retained on condition that the PNU side accepts ODM demands that the the national security organs are anchored in the Constitution to secure their independence. A similar accommodation was reached on the Teachers Service Commission which was similarly retained in the draft.
At the end of the day, it was resolved that there will be three security organs, the Kenya Defence Forces, the National Security Intelligence Service (NSIS) and the Kenya Internal Security Service comprising the Administration Police and the regular police, headed by separate commandants but reporting to one authority, the Inspector General.
A surprising facet of the talks is that members did not take party positions at all times. Chepalungu MP Isaac Ruto, a fierce rival of Mr Odinga, advocated a parliamentary system which the PM is said to favour.
Ms Karua was consistently vocal on accountability issues, rather than the traditional PNU demands. And Mr Namwamba and Mr Mohammed were said to drop their own party positions every time they chaired the talks.
On Saturday, Justice and Constitutional Affairs minister Mutula Kilonzo, who was said to have kept mostly quiet during the talks to preserve his neutrality as the minister in charge of the review process, praised MPs for striking a deal.
He also promised the process would not collapse as it did after another Naivasha Accord on contentious issues in the Bomas draft was struck in November 2004 only to come apart a few months later.
“There is a commendable difference this time round,” said Mr Kilonzo. “In fact, we have agreed not to call it Naivasha Accord, to prevent the jinx of the past. The Naivasha of the past was badly organised. I was also a member of the PSC then. But the mistake we made last time was to treat it (PSC retreat) as a political class discussion.
This draft is driven by Hansard (verbatim report of the debates and proceedings in Commonwealth parliaments) and parliamentary orders. The Naivasha talks this time round were not about grandstanding but about national issues,” he said.