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.
However, a decision by the experts to ignore the political compromise reached in Navaisha 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 draft constitution.
It is also notable that key political players from both sides of the grand coalition government who are expected to drum up support for the draft were in Naivasha or were represented by influential members of their parties.
Already, President Kibaki and Prime Minister Raila Odinga have welcomed the Naivasha agreement.
At the Naivasha negotiations were Deputy Prime Ministers Uhuru Kenyatta, Musalia Mudavadi and other influential figures such as ODM deputy leader William Ruto, Lands minister James Orengo and Mutula Kilonzo of Justice and Constitutional Affairs.
Narc Kenya chairperson Martha Karua and Cabinet ministers Moses Wetang’ula, Sally Kosgei and Beth Mugo were also part of the negotiations.
Clearly, the Act gives Parliament, among other organs of the review, a lot of influence in the process. MPs would have to debate, accept or reject the draft in Parliament after it has been revised.
It is noteworthy that the experts were hired by Parliament through the select committee.
The life of the Committee of Experts is expected to end in March unless they seek an extension. Owing to delays and the elaborate nature of the process, the country is unlikely to have held a referendum on the proposed new law by March.
The Act says that Committee of Experts shall stand dissolved 45 days after the day the President proclaims the new Constitution.
Among other things the PSC rejected are a hybrid system of government. It settled for a presidential system with the President as both head of state and government. The presidency will be checked by a strong Parliament, reformed Judiciary and county governments.
Earlier, the experts suggested creation of a Senate (Upper House) with a supervisory role over the Lower House, but the select committee stripped the Senate of any legislative duties.
Due to a strong desire to tame what has been described as an imperial presidency, the PSC empowered Parliament to vet Cabinet ministers and their deputies before they are appointed by the State President.
To separate the Executive from the Legislature, MPs appointed as Cabinet ministers would be compelled to resign from their House seats.
And to curb the abuse of public office to reward political cronies and relatives at the expense of merit, Parliament will also approve appointment of constitutional office holders, high commissioners, ambassadors, diplomatic and consular representatives.
In addition to this, Parliament, which will control its own calendar, can impeach the President who would be required to present a report to the National Assembly once a year on progress achieved in meeting Kenya’s international obligations.
The PSC rejected a number of radical proposals from the public. For instance, wananchi had suggested dismissal of all judges for fresh vetting, disbandment of the provincial administration and reduction of the number of MPs.
The committee increased the number of MPs to 349 but capped the number of Cabinet ministers at 25.