Nairobi — The Banana-Yes and Orange-No Teams last night made a last ditch television and radio campaign to convince Kenyans to vote for their side during Monday's referendum.

Six panellists, three from either side, engaged in a one-and-a half-hour live debate on three issues: The Executive, Parliament and Devolution.

In the second Big Debate organised by the Media Owners Association, MPs Moses Wetangula, Martha Karua and Danson Mungatana for the Yes side and Mutula Kilonzo, Otieno Kajwang' and William Ruto for the No campaign engaged in a sober debate as they either defended or criticised various clauses in the Wako Draft.

Except for a brief moment when the issue of the size of the Cabinet brought heated exchanges between the two sides, the rest of the debate addressed real issues in the Wako Draft.

The point of contention was the altering of the Naivasha proposals setting the maximum number of Cabinet posts at 25 but which was removed by the Kilifi group to allow a limitless number of ministers.

Yesterday, both sides gave the country hope that they will accept the verdict of Kenyans on Monday.

They recognised that if the Yes side loses, the country will continue with the current Constitution, and there is a government running the nation.

If the No side loses, the MPs admitted that the country will move ahead and implement the new supreme law under the proposed Draft.

The emotional exchanges which characterised the first Big Debate on October 18 were absent this time round.

On the contentious issue of Devolution, the two sides presented different arguments with the Orange team raising questions on the viability of district governments.

The Banana side defended the two-tier system, with a national and district level of government, arguing that it was less-cumbersome than the four levels recommended at Bomas.

The arguments on the legislature centred around Parliament's ability to check excesses of the Executive. The Yes side argued that provisions for presidential appointees to be vetted by Parliament were a good check on the presidency, while the No side said the President could still manipulate MPs to endorse his decisions and appointments.

The No side felt that the 75 per cent requirement to impeach a president was unattainable, while the Yes team said it was necessary to safeguard the office and authority of the President from malicious designs by MPs.

Yesterday's debate was moderated by NTV's Julie Gichuru and KTN's Louis Otieno.

At the beginning of the debate, each of the panellists was given 30 seconds to explain why they supported or opposed the proposed Constitution.

Ms Karua said: "I support the new Constitution because it contains all the needs of ordinary Kenyans such as free primary education, provision of free health, water and land. However, what is not provided in this proposed Constitution is the short-cut for people who are power hungry and who are seeking power."

Mr Wetang'ula said: " I support the proposed Constitution because it breaks from the old order to anew order and it carries what, in a nutshell, I will call social security for Kenyans."

Mr Danson Mungatana, Mr Moses Wetang'ula and Ms Martha Karua, who apperaed for the Banana (Yes) side in the debate.

Photo by Joan Pereruan

Mr Mungatana added: "I support this draft Constitution because it speaks for the ordinary citizen especially section 86. It states that Parliament must be ordered by the Constitution to give squatters land and respect. Those living in slums must also be given dignity and respect where they live. There will also be a fund to assist ordinary citizens to be given land.

In his turn, Mr Ruto said: "I oppose this new Constitution because it fails in many aspects to capture the will, views and aspirations of Kenyans as contained in the views collected by the Constitution of Kenya Review Commission and represents the whims and interests of a clique.

Mr Kajwang: "This document fundamentally fails to address the aspirations and hopes of Kenyans which were collected and collated in the Bomas draft. It proposes a new constitution alright but doesn't give us a new constitutional dispensation.

Mr Kilonzo: "Fellow Kenyans, since this document was published in August, I have repeatedly said it is a bad document. Your time has come. My reasons for rejecting it will emerge in the course of the debate tonight but I wish to appeal to you to reject it peacefully for the rallies you are holding on Saturday and for the polling you will do on Monday, the November 21st. Please do so peacefully in the name of God and for the sake of this country. It is not worth fighting for. What your judges said yesterday is that this is a document you can replace at will".

The two sides were then given five minutes to present their position and state why they had taken them.

Ms Karua said the proposed Constitution contained the wishes of Kenyans as collected and collated by the Constitution of the Kenya Review Commission.

Foreign Affairs assistant minister Moses Wetang'ula described the proposed Constitution as the most negotiated and comprehensive document ever seen in Africa.

Mr Mungatana said the Draft took special concern about the needs of the common man and mentioned Section 76 which provides ordinary Kenyans with equal rights before the law.

He said the Draft was a document for the common (wo)man which safeguarded them from the excesses of Parliament and the Executive by ensuring that it can only be amended by Kenyans.

Eldoret North MP William Ruto said although the Bomas Draft was a product of the collective will and views of Kenyans, the Government changed it to suit their needs.

"It had good chapters, recognised the Almighty God, preserved the supremacy of the Constitution, natural values, principles of accountability, transparency and culture. But it took the schemes and machinations of a few to dismantle it to give the executive excess powers," he said.

The Kanu secretary general said the Draft gave the president sweeping powers to appoint any number of ministers to negate checks and principle on the presidency.

"This destroys multi-party democracy and devolution which involves sharing of resources," he said.

Responding to Mr Louis Otieno's query on powers vested on the executive, Mr Kajwang said the Draft had vested too much power on the presidency.

Mr Kajwang said the country risked being turned into a monarchy or dictatorship if executive powers were not trimmed.

"Too much powers vested on the executive is dangerous for anybody, any country," he said.

He said under the Draft, the President could even appoint the Leader of Official Opposition to be prime minister.

Mr Kajwang, a lawyer by profession, said even with an executive president the problems facing the health and water sectors would continue.

He said an executive presidency could result in continued corruption, destruction of institutions and the economy.

"The executive (in the Draft) is worse than in the current Constitution," Mr Kajwang said.

Mr Wetang'ula said contrary to allegations by the Orange team, presidential powers in the proposed Constitution had been reduced drastically and would be checked by Parliament.

The president will not be able to give out public land, appoint judges and ambassadors without the approval of Parliament. He will also not be able to sign any international treaties or appoint public servants without seeking the approval of Parliament.

"I do not understand where these imperial powers of the president the Orange group has been saying are coming from," Mr Wetang'ula said.

Wetang'ula Ms Karua said in all democracies, executive power rests with the president.

She said: "The buck must stop somewhere... We cannot have a situation where we do not know where the final authority of the Government rests."

She gave the examples of America, Uganda, Ghana, Senegal and Tanzania as countries where executive powers were vested in the president.

Kenya could not have a situation where executive power was vested in an unelected prime minister as had been suggested by the Bomas Draft as it would end up creating two centres of power.

She wondered why the Orange group was now backing off since even Naivasha had agreed that executive power must rest with the president.

Mr Mungatana accused the Orange team of dishonesty since not one of them had cited even one clause that conferred excessive powers to the president.

Likewise, the president had been barred from giving roadside declarations as they must all be in writing, signed and in a Government seal or letter head.

"The truth is that the Orange team does not have a single thing to show that the proposed Constitution is bad. They are like the Galatians who were told by Paul that they have eyes yet they cannot see, and have ears but cannot hear!" Mr Mungatana said.

The section says that the prime minister will be appointed by the president and shall be the leader of Government business in Parliament and perform other duties that he may be assigned by the president or as laid out in the Constitution.

But Mr Kilonzo took issue with these provisions saying the president, under the proposed Constitution, would easily use them to "fire a prime minister at will".

He also criticised Section 155(7) of the draft which spells out measures that would lead to the impeachment and removal of the president from office. The 75 per cent parliamentary vote threshold spelt out under this section, he observed, makes removing the president difficult as it was nearly impossible to marshall.

But this provision was defended by Ms Karua who said it would be risky to have a president that can easily be impeached by a rogue Parliament.

She added: "A rogue Parliament can easily overthrow a president very quickly."

Mr Wetang'ula said cushioning the president from impeachment was the trend in most democracies both English speaking and French.

He added that the constitution gives the people of Kenya the opportunity to "impeach their president every five years" when the General Election is held.

On the size of the of the Cabinet, Mr Ruto questioned why the proposal to fix the Cabinet size at 25 was deleted from the Draft.

"There was a definite provision for the size of the Cabinet. But you went and brought in the old provision that Parliament will decide. Why was this provision on the size of the Government removed?"

Mr Kilonzo further said that Section 164 spells no limitation to the size of the Cabinet, leaving it at the discretion of the president.

Defending the role of the president in appointing the Cabinet, Mr Wetang'ula said the Naivasha accord, which "Mr Ruto chaired", determined that the president retains his role as the Chief Executive of the country.

On the legislature, Ms Karua said she is happy with the proposed law as it did not provide for two chambers, adding that the creation of the Senate by the Bomas Draft amounted to duplication of roles.

She said the chapter on Parliament provided for special constituency seats for women. This, she noted, would see more women going to Parliament than if each district elects one.

On his part, Mr Mungatana cited Section 116 of the proposed Constitution, saying it provided for special sets for women, the youth, workers and the disabled.

Article 116 describes the composition and membership of Parliament and provides for the election of an MP to represent a constituency.

Political parties will have to reserve special seats for the youth if the document is passed, he said.

If the Wako Draft is enacted, he said, Parliament would be a people's House.

However, Mr Kilonzo opposed them, saying if there was any good reason why the proposed Draft should be rejected it was because of the structure of the legislature.

Quoting clause 116, he argued that the structure was confusing as it was not clear how the one-third women in Parliament would be elected.

He said the number of MPs under the proposed laws were likely to be between 1,000 and 1,6000, according to his Orange team.

He, however, said the 74 women MPs were more as provided for in the Bomas Draft than the one-third of the House under the proposed laws.

He said it was not possible, even with the use of computers, to know the number of women going to the House under the proposed law.

He said although presidential appointments were vetted by Parliament under the proposed Constitution, the Head of State could appoint a third person to be premier automatically after the first two are rejected.

Ms Karua denied claims that Parliament will be easily manipulated under the proposed Constitution saying voters will have themselves to blame for electing MPs who lacked integrity.

"I ask women to know that they are better off under the proposed Constitution and they should therefore vote for it on Monday," Ms Karua said.

Mr Wetang'ula accused the Orange team of "selectively reading the draft" over the controversial issue of reserved seats for women in the legislature.

Mr Kajwang scoffed at the claim that the legislature would check the executive saying that under the draft that was wishful thinking.

"If the President is given the powers to appoint a one party leader to be premier it will reduce the party leader to a figure head," Mr Kajwang said.

Mr Ruto opposed the draft saying it had too many grey areas on very pertinent issues that affect the separation of powers.

Mr Mungatana said under the new Constitution Parliament will carry its business in public and there will be no room for underhand and shady deals.

"I don't believe the President will use the Constitution to lord it over the MPs and other arms of Government," Mr Mungatana said.

"This is the best draft we can ever have," the Water minister said.

Mr Wetang'ula said the transfer of power under the Constitution would not happen with a bang but would be a gradual process.

However Mr Ruto said the sharing of the resources would be determined by Parliament and would not be equitable as there was no formular for implementing it.

On the aftermath of the referendum vote, Ms Karua said if the draft was accepted, the Government would embark on implementing it. She said in the event of a No vote, the Government would continue to administer on the current Constitution.

Mr Ruto said there will be no winner whichever side won.

"It is only the margin of the loss either way that we are waiting for," Mr Ruto said.

Mr Kajwang said Kenyans will start agitating for a new Constitution if Yes wins with a small margin. And if No wins, a legal framework will be put in place to revert to Bomas Draft.

Mr Mungatana said the Government will continue to function normally if Yes wins or not. He said the struggle (mapambano in Kiswahili) will continue.

Mr Kilonzo said the proposed Constitution was not implementable and was likely to attract numerous litigations in court.

The Wako draft, he said, cannot be contested for validity or legality and asking Kenyans to accept it was tantamount to being asked to take poison.

He said if No wins in the referendum, there would be no vacuum since President Kibaki was elected in a democratic way and would therefore continue to govern.

Ms Karua said she was happy that the Orange side had at last recognised that there would be no vacuum even if No carried the day on Monday, but warned that there would be no shortcut to power. Mr Kajw'ang asked Kenyans to reject the Wako draft because the powers vested in the president would overrun all other institutions in the country therefore undermining democracy.