Kenya's Constitution

Consensus building talks between ODM and PNU hit a wall yon Monday.

The battle over the new constitution has narrowed down to the separation of powers between a President and Prime Minister in a hybrid system of Government. But talks to resolve the impasse bore no fruit. This puts into jeopardy efforts by the coalition parties to present a single document on proposals on the Harmonised Draft Constitution before it goes to Parliament. This was, however, expected as the political divide separating the two parties has persisted since the Bomas constitutional conference in 2004 when they threw the attempt to rewrite the Constitution into a spin.

Although their proposals to the Committee of Experts (CoE) will be considered like any other views from other Kenyans, the two main political parties would play a major role in the process when the proposed constitution goes to Parliament.

A technical committee formed by the parties to work on the structures and systems, which will guide the power-sharing model and delineate the two offices, remained a challenge ahead of today’s critical meeting of the Grand Coalition Management team.

A consensus meeting of the technical committee ended in a stalemate after lawyers differed on which model of the hybrid government to borrow from.

It was not immediately clear what the coalition management team would discuss in the absence of a joint position, which would have set the agenda.

The team had taken a break on Friday to do their homework on the hybrid system of Government and to return with examples of best practices including a dispute resolution mechanism before settling on one model. But the meeting, which began at 12.30pm, ended quickly with no progress.

"failed" states

Monday’s meeting involved Njee Muturi, Mutuma Kathurima and Prof Kivutha Kibwana for PNU and Dr Mutakha Kangu and Miguna Miguna from ODM. The talks flopped after PNU presented a paper looking at governance systems in Africa.

This was dismissed by ODM as singling out "failed" states.

"Our colleagues came with examples from failed states of Africa. They talked of Togo, Somalia, Ivory Coast, Uganda and the likes. We borrowed from Canada, India, Germany and Britain," Miguna said. "In Britain the Monarch (Queen) is Head of State while PM is Head of Government. We gave successful examples of hybrid systems in France, Canada and Germany. But when they gave only failed states, I told them we do not have any discussions."

PNU technical team’s document compared all the systems practiced by the 53 countries in Africa. It was titled ‘Comparative Study of Exercise of Executive Powers’. According to our sources, it analysed both the presidential and parliamentary systems that are being practiced in Africa.

Later PNU said they would root for a powerful President who appoints the Prime Minister (see separate story on Page 7).

But a group of 15 MPs led by Garsen legislator Danson Mungatana announced they were comfortable with the hybrid arrangement in the Harmonised Draft Constitution, save for some fine-tuning. Speaking after a two-day retreat at Hotel La Mada, the 15 MPs said they are in agreement that the issue of hybrid system of governance is not contentious, but just needs a little "panel beating".

media briefing

Mungatana, who spoke on behalf of the MPs, said their only concern on the Executive would be instances where the President and the Prime Minister may come from different political parties.

"There is no contentious issues here, we just need to have clear roles and rules of the President and the Prime Minister in case they come from different parties," he said.

Those who attended the media briefing at the Hotel were MPs Joseph Nkaiserry, Omingo Magara, Gideon Konchellah, Gitobu Imanyara, Martin Ogindo, Mungatana, Ephraim Maina, Bony Khalwale, Ferdinand Waititu, Benedict Gunda and Clement Wambugu.

Health Minister, Beth Mugo, Water Assistant Minister, Mwangi Kiunjuri and MP Abuchiaba Mohamed attended Monday’s meeting but left before the address to the media.

PNU has been pushing for a presidential system where the President is the Head of State and Government. The sources said the PNU team plans to present the same document, which is their position to the Grand Coalition management team that meets this morning to finalise discussions over the matter.

Varying degrees

According to the document in Africa they established that 46 countries out of the 53 have a political system headed by a president. In 17 out of those 46 the president exercise executive authority on his own while in the remaining countries the president and the prime minister share executive functions in varying degrees.

The team had also agreed to work on the Council of Sate, a body that would be charged with dispute resolution between the offices of the President and the PM to allow for smooth running of government.

PNU later issued statement on the nature of Government it wants: A president directly elected by the people with 50 per cent plus one vote and a majority of the 25 per cent of all votes cast in half of regions who shall be head of State and Government.

This position directly contradicts that of ODM, which is for a parliamentary system in which the Prime minister is Head of Government while the President is Head of State.

The technical committee meeting ended in disarray after both sides failed to reach an acceptable model of hybrid from other countries.

Miguna said in the PNU document even South Africa, which is Parliamentary system was listed as a presidential system. "The PNU document has not been filtered through the technical committee as agreed."

Shall we really get a new constitution here in Kenya? We were to get it within 100 days since 2003 but it is now 2009?