Ghai returns with alternative draft Constitution

By Erick Otieno
Published October 29th 2006 in The Sunday Times (Kenya)
HERE seem to be bold commitment from the Multi-Sectoral Review Steering Committee to a new constitutional dispensation by the next General Election.

Out to disapprove skeptics wrong, the Dalmas Otieno-led committee last week unveiled plans to bring home a new constitution by September next year – just three months before the poll.

But this is not the first time a roadmap for the elusive new constitution has been unveiled and it is just too early to pop up champagne bottles. The convoluted matter of the review process has always taken disappointing turns every time its completion comes to sight and with politicians taking time to comment on the timetable there can be no certainty on its success.

The first step – preparations by the steering committee – having been achieved, eyes will now turn to Parliament which is expected to enact a new law to guide the review as the second step.

While the second step will not raise any storm given the concurrence of legislators on the need for the review process to be anchored on the law, fireworks will begin at the third step.

It is at the third step where a secretarial will be set up and a Council of Reference inaugurated. Scheduled for December 1 to April 31 next year, conference delegates will be elected to negotiate contentious issues, build consensus and prepare the draft.

The negotiations like the past will obviously begin taking political, ethnic and religious colorations, as delegates will be pushing for the interests of their parent groups. It is at this stage that Bomas became hot and divisions over the nature of the new constitution were clearly evident.

It is also at this stage that more and more drafts will come to the fore as every interest group seek to outdo each other. But in case the hurdle is overcome within the timeframe, the fourth stage that will be parliamentary debate on the resultant draft could not prove hard to crack.

Yes, the draft can sail in Parliament easily given the majority that the Government of National Unity commands at the moment. But this will only be possible if the draft from the conference favours the establishment, otherwise it will be thrown back with recommendations, creating another circus that the review process has been since it began.

The fifth step set for June 1 to August 31, 2007, should we get there, will present Kenyans with an electioneering mood, which will not end until the Elections are held.

The roadmap was unveiled as the former chairman of the defunct Constitution of Kenya Review Commission (CKRC), Prof Yash Pal Ghai, proposed radical changes to the Bomas and the Wako draft constitutions.

In what he calls an alternative draft to a new constitution for Kenya, Prof Ghai touches on the emotive issue of the system of the national government and introduces new institutions of the Baraza la Taifa and the Appointments Commission.

It also proposes changes to the mixed membership parliamentary system adopted in the CKRC and referendum draft by emphasizing on the representation of women and persons with disability as well as proportional representation.

The most critical issue of the system of government has resulted in the unending stalemate in the constitution review process with sections politicians rooting for that which will serve their interests best.

Proposals in the CKRC draft for a mixed system of the executive with the president and the prime minister sharing powers drew criticisms at the Bomas conference with opponents asserting that it will create two centers of power. After intense negotiations, however, the conference settled on a compromise that Prof Ghai says blurred the clear distinction made in the CKRC draft.

But the Wako Draft re-introduced a strong executive presidency at the national level with a lame duck president.

And now the alternative draft proposes as parliamentary system of government but with a president with some real powers. The President, according to Prof Ghai, will make certain appointments, express views, draw matters to the attention of others and protect the Constitution without governing.

It also puts a limit on the number of ministers and assistant ministers and calls for the establishment of the Baraza la Taifa, an assembly of the people, which elects the President and meets annually to review the performance of the government.

The essential elements of Prof Ghai’s proposals for the parliamentary cabinet system are that state powers will be divided between the central government and regional and county governments. The legislative, executive, administrative and judicial powers will be kept separate at all the levels.

At the central level, the executive will be parliamentary with powers vested in the Cabinet headed by the prime minister. On the other hand, the legislature will have two houses, one of which will have the limited role of representing the regions.

On devolution, he proposes 14 regions making law and counties as the main administrative level. The draft at the same time creates a provision for gradual shift of responsibility to lower levels of government but a commission will have to be appointed to elaborate the system.