Kenya's draft constitution: How president and PM will share power

NAIROBI – The Kenyan draft Constitution is now up for debate and power will now be divided between a president and a prime minister under the new constitution. One will be Head of State and the other Head of Government if new law is passed

The draft, unlike the current law, is clear on the authority of the President and the PM.

Under the current law, the President has a wide array of powers, few of which are shared or checked.

But under the proposed law, the President will only act most times on the advice of the Prime Minister and the Cabinet and his decisions will have to be approved by Parliament.

The Prime Minister will have greater say in nominating people to positions such as Cabinet ministers, deputy ministers and top civil servants.

Under the new arrangement, the President will the Head of State while the Prime Minister will be Head of Government. The PM will pick Cabinet ministers and other public officials for appointment by the President.

The President will retain many of the trappings and privileges of office: He or she will still live at State House, preside over national holiday functions and have a motorcade with outriders. In his new role, the President will be the symbol of the country’s unity.

As Commander-in-Chief and chairperson of the National Security Council, the President will also preside over passing out parades of security forces.

Under the checks and balances introduced in the proposed constitution, the President becomes a final authorised signatory of government decisions.

With the approval of Parliament, he or she may sign treaties and international agreements. He will also need the approval of Parliament to declare a state of emergency or a war.

The proposed powers of the PM will be checked by Parliament because he or she can be sent packing with the entire Cabinet if the national assembly recommends so to the President.

But the premier will have a lot of authority, he or she will take the powers exercised by a president today in the day-to-day running of government.

No Cabinet decision can be implemented unless it has been signed by the PM.

In the exercise of his duties, the PM is required to promptly and consistently brief the President on the conduct of government.

Committee of Experts chairman Nzamba Kitonga has defended this structure against claims that it proposes a ceremonial president despite the requirement that the nation’s chief executive be elected by the public.

He said Kenyans wanted to elect their president directly but also preferred a prime minister with authority to oversee the daily functioning of the government.

“The document we unveiled before you has tried to respond to these needs by creating a dignified, stately-cum-executive presidency with sufficient authority to oversee, unite and protect the country but without the baggage of the day-to-day running of government,” said Mr Kitonga.

The President will have the powers to dismiss judges of the superior courts and any other State or public officer whom the constitution requires the State President to appoint. However, he will only do this through the advice of bodies such as the Judicial Service Commission and Parliament.

The PM will advise the President on any dismissal of the deputy Prime Minister, a minister or a deputy minister. Parliament can also pass a vote of no confidence on a member of the Cabinet after which he will be required to resign within three days.

If the National Assembly passes a motion of no confidence in the Prime Minister, he or she and the ministers and deputy ministers will be required to resign. If they do not do so in seven days, the President will be required by law to dismiss them.

The President will also have the powers to appoint high commissioners, ambassadors and consular representatives with the approval of the National Assembly. He or she will also receive foreign diplomatic and consular representatives.

According to Mr Kitonga, the provisions avoid the abuse that has been associated with the highest office in the land.

The role of signing Bills into law also remains with the President under the new draft. He or she will also have the powers to direct the PM to ensure that any Act of Parliament is implemented.

The draft indicates that the President will appoint as the PM the leader of the party with the highest representation in Parliament.

If MPs fail to approve this appointment, the National Assembly will be required to nominate one of their own as prime minister within 60 days failure to which it will be dissolved and a general election called.

The draft gives room for the President to be impeached by Parliament through a motion approved by at least two thirds of all members of the National Assembly. However, the President remains in office until the Senate hears and determines the charges against him.

The President also holds the power to pardon offenders through an advisory committee made up of the Attorney General, the minister in charge of prisons and five other members who do not hold public office.

The PM will have a primary role of directing and coordinating the work of ministries and preparing legislation, and is responsible to Parliament. The PM will preside over Cabinet meetings.

Meanwhile, some MPs from Central Province have opposed the proposal that Parliament will elect an executive Prime Minister. They said the job should be done by wananchi.

The leaders who held a meeting to discuss the harmonised draft constitution in Nairobi yesterday said Parliament should not elect the country’s chief executive.

“We resolved that MPs should be aggressively denied the chance to elect Kenya’s CEO,” said Ndaragua MP Elias Mbau who attended the meeting.

All wielders of executive authority should be elected by the people, the MPs said. They also said the draft law had created an “imperial prime minister.”

But they resolved to support the document even as they seek to review some of the sections of the new law.

Additional reporting by Emeka Gekara-mayaka