Renewed calls for review of Kenya’s Constitution

Saturday November 11 2017

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Kenya’s opposition, religious leaders and civic society are considering a raft of constitutional amendments they say will cure perennial election-related disputes and restore confidence in the country’s electoral process.

The groups have started campaigning for a review of the Constitution that could see the country consider reintroducing the position of prime minister, which was held by opposition chief Raila Odinga in the Grand Coalition Government.

Mr Odinga last week, during his visit to the US, hinted that a presidency that still controls almost 60 per cent of the national budget is the cause of electoral malpractice because the 43 ethnic groups believe their interests are only protected when a leader from their community wins the presidency.

According to Mr Odinga, the presidency still wields too much power, which precipitates a fierce scramble by politicians for inclusion in the national government despite the existence of devolved units.

“We have so many ethnic groups; so a pure presidential system enhances ethnicity because each group believes it is not safe when their man is not at the top,” Mr Odinga said.

The call for a review of the Constitution was first made by the National Council of Churches of Kenya (NCCK) to end tension after an electoral process where the winner takes all and the loser goes home emptyhanded.

According to NCCK, a bipartisan parliamentary committee should be constituted to spearhead the review and ease tension between the opposition and the government.

But according to civil society activist Daisy Amdany, while a wide range of issues have emerged that must be fixed, the constitutional review debate should be shelved to ensure that fidelity to the current laws is upheld like Chief Justice David Maraga did in the majority ruling on the September 1 presidential elections petition.

Hybrid system

During the clamour for constitutional review, watering down presidential powers saw heated debate, with one side of government led by Mr Odinga pushing for a parliamentary system, but this was defeated by the group that favoured a pure presidential system.

The parliamentary team that midwifed the new Constitution sitting at a Naivasha hotel, reached a compromise: to establish county governments to deal with exclusion that made the quest for presidency a matter of life and death.

Devolution, the Committee on the Constitution noted, was the only practical solution that would ensure that the national cake is shared equitably across the country, with the office of the Governor and county assemblies devolving some of the powers that the presidency wielded.

Power games in the Orange Democratic Movement and then ruling Party of National Unity scuttled the push for a three-tier government that would have seen the country have a ceremonial president, an executive prime minister and 18 regional governments under a hybrid system.

President Kenyatta, then an ally of retired president Mwai Kibaki teamed up with Deputy President William Ruto, who was leading a rebel group of ODM MPs, to marshal numbers, to push for a presidential system with devolved governments.

However, Mr Ruto later joined religious leaders to oppose the draft constitution, singling out chapters on abortion, land and establishment of an Islamic court as contentious issues that needed amending before subjecting the document to a referendum.

Amending the document required a two-thirds majority in parliament ahead of a referendum, an uphill task that Ruto and his team were unable to achieve on the floor of the House when the draft constitution was tabled for a debate.

The session was marked by walkouts by MPs to deny proponents of amendments the requisite two-thirds majority.