Joseph Kamotho: Glaring loopholes in the latest draft

The new draft constitution leaves a lot to be desired and requires more than a radical surgery before the referendum. The document by the Committee of Experts is a cut, copy and paste with few amendments from the cur-rent constitution.

At least two drafts — one on a purely parliamentary and another on presidential system of government — were expected at this stage or at the referendum. The coalition government, a mixed grill, is already controversial and has led to political bickering.

The history of constitution making in the country dating back to the colonial times has not been a bed of roses. The Bomas drafts and others were trashed by feuding political class.

The nation's founders could not agree on a constitution at Lancaster House until the British Government intervened resulting in a document that has been mutilated beyond recognition.

But even then, the independence constitution was clear on the distinct roles of the head of state and government in a new Kenya. The Governor General was the head of state and Commander-in-Chief of the Armed Forces and Jomo Kenyatta was the PM and head of government because his party, Kanu, won the majority of parliamentary seats in the first General Election.

In the ensuing period, political parties were hoodwinked into dissolving ostensibly to forge national unity. Consequently, Kenya became a defacto one-party state. That is when the rain started beating us.

The proposed formula of picking a President who will also be the Command-er-in-Chief of the Armed Forces in a parliamentary system like India is not acceptable.

The next President who will not be an MP is expected to go round the country to look for votes and eventually cede authority to the PM. On which platform would such a person be elected if not on any of the existing parties and what happens if the President and the PM come from different parties?

In the new draft, the President shall have powers to dismiss the PM. You cannot rule out a collusion between the President and MPs to remove the PM in such an arrangement.

To avoid conflict between the President and the PM, a group of eminent persons should be proposed and subjected to an electoral college to elect one as President from the list.

The President should be, above all, a symbol of national unity and serve for one term of seven years that does not coincide with a General Election.

In a purely presidential system, the President is elected by the people and runs the country with the two chambers of deputies. The appointments made are vetted by MPs.

Unlike in the parliamentary system, MPs in a presidential system concentrate on committees and subcommittees and legislative agenda as well representing the constituents.

In the current system, the constituents are under-represented and legislative work suffers because the ministers who are also MPs are under obligation to support the Executive at all times under collective responsibility.

The new draft proposes that out of the 20 ministers to be appointed by the PM, 50 per cent should be drawn from outside the Legislature. This won't add value to the functions of the Executive.

Going by history, we are likely to see and hear more of bickering in the Cabinet than ever before.

The committee identified areas where reforms should be undertaken but surprisingly avoided the Legislature that needs radical surgery. For instance, there is a Parliamentary Service Commission comprising MPs, the Speaker and the Clerk as members.

One cannot expect fairness from a commission dominated by elected persons especially when it comes to recruitment of staff.

For purposes of transparency and accountability, half of the commission's membership should come from outside the Legislature to forestall abuses and excesses by lawmakers.

The experts should look at the draft afresh and ensure that the document is not rejected again — its rejection would mean a rehearsal for worse things to come.

The writer is a former Cabinet minister and secretary general of Kanu and LDP.

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