Nairobi — President Kibaki and Prime Minister Raila Odinga have started rallying their forces to try and get a consensus on the draft constitution.
Yesterday, the two separately held meetings with their parties' representatives in the consensus building committee established to iron out the differences both sides have over the system of government and power sharing between the President and Prime Minister. While Kibaki's PNU has been rooting for a purely presidential system of government with an executive president in charge of government, Raila's ODM is rooting for a parliamentary system of government with a powerful Prime Minister and a ceremonial president.
Kibaki and Raila were taken through the Harmonised Draft Constitution by their representatives and discussed this and other issues. A scheduled meeting called by the committee's joint secretaries Prof Kivutha Kibwana and Miguna Miguna was called off at the last minute to allow the meetings which were held at Harambee and Treasury Buildings respectively.
At the end of the meetings, sources said Kibaki and Raila agreed to a joint meeting of the harmonization committee that includes 12 cabinet ministers as well as the legal experts from either side which include Njee Muturi, Mutuma Kathurima for PNU, Dr Mutakha Khangu and Caroli Omondi for ODM.
Some members of the committee asked Parliament to amend the law to provide for two draft constitutions. Currently the act governing the review processes says that only one draft will be presented to Kenyans in a referendum for approval.
"If we do not have two drafts then it means there are chances we will not have a constitution again," said William Ruto, a member of the ministerial consensus building committee.
The meetings come at a time when the Parliamentary Select Committee on the Constitution has moved in to stem a possible rejection of the constitution by reviewing the options available to stop a repeat of the 2005 referendum fiasco.
The PSC is scheduled to go for a one week retreat to reach consensus on the contentious issues in the draft presented to them by the Committee of Experts last week. The PSC, chaired by Mandera Central MP Mohammed Abdikadir, has until the end of January to deliberate and submit their recommendations to CoE.
If PSC reaches a consensus and submits a united position, the experts will be required to incorporate the common stand and hand over the final draft constitution to the PSC by February 19th. The PSC will then be required to table the draft constitution in Parliament by February 26 for debate. Parliament should debate and endorse the draft constitution by the end of March.
If Parliament endorses the draft without amendments, the draft will go straight to Attorney General Amos Wako who will be required to publish it within seven days to clear way for a referendum which must be held within 60 days. This is the first and the most convenient option provided by the Constitution of Kenya Review Act, 2008.
But fearing that this option may not be as successful as earlier anticipated, Parliament has already put in place two other options to ensure that the draft is not rejected.
Unlike 2005 where Wako had powers to amend the draft, this time round his role has been limited and he cannot tamper with the document.
If parliament amends the draft, these recommendations will go to the AG who shall have seven days to submit the document to CoE for consultation and redrafting.
The two will then be required to submit a new version of the constitution containing the recommended amendments to Parliament by latest April 9 . It is at this stage where MPs will for the second time be asked to endorse the document and clear the way for a referendum.
But if Parliament again fails to endorse the document, the third option-where CoE and PSC hold a joint meeting- will come into play. The Act provides that the two committees work independent of each other.
However, in case Parliament fails to endorse the draft, the two committees and the 30 reference groups will be required to meet and make recommendations how to solve or reach consensus on the contentious issues. The reference groups include professional bodies and religious groups.
The joint committees will have seven days to reach a consensus and after that, COE will have another seven days to prepare the final draft and table it in Parliament where MPs, for the third time, will be asked to accept it and clear the way for a referendum.
The Act stipulates that "National Assembly shall within twenty-one days approve the draft Constitution and submit it to the Attorney-General for publication." If Parliament endorses the draft and AG publishes it, the Interim Electoral Commission will have 60 days to conduct a referendum.
But if MPs fail to agree on the draft after being put on their table for the third time that will mark the end of the journey for a new constitution as the AG cannot publish a document which is yet to be ratified by the National Assembly.