MPs strike deal on system of governance

By Jibril Adan and Beauttah Omanga

Kenya moved closer to a new constitution after Parliamentary Select Committee on review retreat in Naivasha surmounted what appeared to be the trickiest hurdle.

PSC Chairman Abdikadir Mohammed said his team had made substantive progress on the Executive and is now dwelling on Devolution, before concluding the emotive Chapter.

"We have dealt with the Executive and reached consensus but we will issue a statement after tying it up with Devolution of Power and Propositional Representation, which we are dealing with," said the chairman.

American way

The committee to which President Kibaki and Prime Minister Raila Odinga thrust the task of delivering a compromise on the divisive draft clauses on whether to adopt pure presidential and unadulterated parliamentary system reportedly agreed Kenya goes the American way.

Handed the task after Kibaki and Raila failed to bring the high profile Cabinet Management Committee to a compromise, reports from Naivasha showed the 26-member coalition team could have helped Kenya mount what was seen to be the slipperiest pole in its jump for a new law.

If the agreement reached by PSC holds between now up to the referendum on the draft constitution, and sails through the voting stage, Kenya’s next president will appoint ministers who are not Members of Parliament, and below or beside him, there will be no prime minister.

Members of the Parliamentary Select Committee on Constitutional Review at the Great Rift Valley Lodge in Naivasha, Thursday. [PHOTO: ANTONY GITONGA/STANDARD]

He or she will rule in a restrictive regime where though he will chair Cabinet meetings and remain Commander-in-Chief of the Armed Forces, he will not sit in Parliament and his powers over Parliament would have been severed.

The agreement expected to smoothen the ground for the other less contentious clauses, effectively took off the proposal of two centres of power initially proposed by the Committee of Experts, and popularly referred to as hybrid system.

There has been apprehension PSC members may differ over the system of government following deadlock during a PNU and ODM meeting last week.

But even after ODM dumped parliamentary system and switched to ‘pure’ presidential, who PNU had supported, its members argued their version of presidency was different from PNU’s. ODM reportedly argued PNU’s model was not dissimilar from the imperial presidency Kenyans wanted replaced, and threatened to push for pure parliamentary system if PNU’s appeared to be getting a foothold in the talks.

But yesterday PSC proved skeptics wrong when it took only a few hours to agree. The motion to adopt the presidential system was moved by an ODM minister who convinced the team the US had succeeded through the presidential system.

Under the system agreed, the president would not be a Member of Parliament and the Cabinet, too, will be appointed from outside Parliament, as in the US.

Any MP who is appointed to the Cabinet will relinquish his seat because one cannot be a member of two branches of government. It was agreed the Legislature would be independent for MPs could check the Executive.

Some of the other checks and balances on the Executive include the president seeking approval of Parliament for Cabinet appointments and those of holders of senior public offices as well as judges.

The president would be Head of State and Government and would thus have the powers to appoint and dismiss the Cabinet. As Head of State, he or she would be Commander-in-Chief of Armed Forces and would preside over State functions.

The president, who would be elected by more than 50 per cent of the votes cast, would be accountable to the people through an impeachment mechanism.

A notable feature of the system is the appointment of Cabinet ministers outside Parliament. This could open avenues for professionals to participate in governance without being subjected to elections. In the current system, the President is also an MP.

Parliamentary seat

But he never comes to the House except in his capacity as Head of State, to addresses the House from the Speaker’s chair.

The ministers, who are part of the Executive, are also MPs, making them also part of the Legislature.

When a ministry is being probed or when its accounts are being interrogated, the minister sits in the House and votes on his own ministry as MP. In the new system ministers appointed from outside Parliament would not be allowed to vote.

Any MP appointed minister must quit his or her parliamentary seat.

The idea to go for pure presidential system was mooted by the minister after it emerged a section of PSC members were not ready to accommodate the hybrid or parliamentary system, as the ODM side proposed.

Earlier the committee held a three-hour consultation with two experts, Prof Peter Aduol and Johnstern Sakancha, on modalities of resolving the representation stalemate.

Sources say the experts said the country’s 40 million population could adequately be represented in Parliament if a uniform figure was arrived at in creating constituencies.

The source said the experts recommended 133,000 as minimum population for each constituency, which would create 300 constituencies.

"It was the view of the experts that 300 constituencies would be sufficient if the country’s population was to be sufficiently represented in Parliament," added the source.

The MPs were divided on whether to go by the experts’ recommendation or stick to their own proposal of 56 new electoral areas.

The issue of representation saw divisions among PNU representatives, as Gichugu MP Martha Karua opted to join the ODM wing during two-hour consultations.

It was not clear what triggered the differences that forced Karua to decamp. A source at the meeting said the Gichugu MP had supported a pure presidential system, which was floated by the ODM side and convinced majority of the members to adopt it.