“I encourage all Kenyans to use the 30-day comment period to engage in a constructive and substantive dialogue on a new constitution,” Secretary of State Hillary Clinton said in a late Tuesday statement.
Kenya on November 17 unveiled a new draft constitution proposing that the president be the head of state only, and creating a post of prime minister, who will be the head of government.
The draft is undergoing a 30-day review in which the public can make suggestions to the experts. The final draft will be put to a vote in a referendum in 2010.
The east African country now has a president, who is both head of state and government, a source of intense election fighting that has repeatedly plunged Kenya into bloody clashes.
The review “is an opportunity for the Kenyan people to help determine the content of the constitution and come together to build a system of government that serves and protects the interests of all, regardless of political affiliation, ethnic group, or faith,” Clinton said.
“This is also a time for President (Mwai) Kibaki and Prime Minister (Raila) Odinga to demonstrate their leadership and commitment to a peaceful future by working together to support a constitution that will serve the national interest for generations to come. I hope Parliament will act expeditiously, and with a sense of shared purpose, when the draft is formally presented to it,” Clinton said.
She added that the United States “is committed to supporting the Kenyan people’s efforts to implement their reform agenda.
“Development and ratification of a new constitution will provide a solid foundation for a more peaceful, prosperous, and democratic future,” Clinton said.
Kenya’s current prime minister is not the head of government; the position was created last year in a unity government put in place to end widespread post-election violence.
Under the draft, the president will be directly elected and will name a premier from the largest party or coalition of parties in parliament and who will be confirmed by parliament.
The draft law also proposes a decentralised government, introducing regional and county governments, sets limits on the size of the cabinet and introduces a senate.
The draft constitution has made it easy for Parliament to remove the President from office through a vote of no confidence by divorcing the term of presidency from that of MPs.
In effect, passing a vote of no confidence against the President will not, as is in the current constitution, bring to an end the term of office for MPs.
The current provision where ending the term of the President means dissolving Parliament has acted as a deterrent for MPs to censure the President even where there are good reasons to pass such a motion.
However, to safeguard the President from baseless censures, the process has been made more elaborate by requiring that the Senate must vote to uphold or reject such motions.
To pass, the motion must garner at least a two-thirds majority of all the members in each of the two houses — the National Assembly and the Senate.
Before voting, the Senate is required to constitute a special committee of 11 Senators to investigate the allegation against the President. And to initiate such a motion, a member will need to be supported by at least a third of all the members in the National Assembly.
The President will be censured only on three grounds; if he or she seriously violates the constitution or the law; if he or she is suspected to have committed a crime under national or international law; and for gross misconduct.
All such motions shall be initiated in the National Assembly. If they secure a two-thirds majority, the Senate is to convene within seven days to hear the charges against the State President.
The Senate is then to vote whether to appoint an 11-member special committee to investigate the matter. The committee shall have 10 days to investigate the matter and make a report to the Senate.
In a departure from the current dispensation, where the President can only appear before the National Assembly to defend himself, the President will have the right to either appear in person or appoint lawyers to represent him before the special committee during its investigations.
If the special committee reports that the President has no case to answer, the President will continue with his duties as if the National Assembly had not voted.
If the President is found guilty, the Senate shall then convene to vote on the motion and if the motion passes by two-thirds, the President shall cease to hold office.
Meanwhile, retired President Daniel arap Moi has declared his opposition to the sharing of executive authority between the Prime Minister and President as proposed in the harmonised draft constitution.
Mr Moi said the proposed arrangement amounts to the creation of two centres of power, adding that this would make it difficult for the country to be run efficiently.
He said vesting executive power in a popularly elected President, combined with the establishment of sufficient checks and balances through Parliament, would be the best option for Kenya.
“There are checks and balances that can be in institutions such as the proposed upper house and other institutions,” Mr Moi said.
The retired President enjoyed executive power during his 24-year rule, mainly due to amendments to the constitution that ended up creating what is now referred to as the imperial presidency.
The powers of the presidency are cited as one of the reasons the seat is coveted, leading to divisive politics that led to the violence that followed the 2007 General Election.
The retired President has also prepared a three-page memorandum he said would be presented to the Committee of Experts.
He said “certain parts” of the proposed laws are good and others contentious and these should be dealt with by the time a final draft is produced and put to the vote at a referendum.
“There will be discontent if some people feel their needs have not been addressed,” Mr Moi said.
Speaking to the press at his residence at Kabarnet Gardens near Kibera, Mr Moi also opposed the scrapping of the Provincial Administration and the creation of regional governments to replace them.
Debate on the draft constitution is set to end in 15 days and has been dominated by the power vested in the presidency and the office of the Prime Minister.
Under the current law, the President has a wide array of powers. The creation of a Prime Minister’s position, who supervises government functions, has somewhat whittled them down.
Under the proposed law, the President’s powers are limited and he will mostly act on the advice of the Prime Minister and the Cabinet.
Parliament will have to endorse his decisions and the Prime Minister will have greater say in nominating Cabinet ministers, deputy ministers and top civil servants. The President will be the Head of State while the Prime Minister will be the Head of Government.
The President will retain many of the trappings and privileges of office — he or she will still live at State House, preside over national functions and have a motorcade with outriders.
In his new role, the President will be the symbol of the country’s unity.