Nairobi — Kenya inched closer to a referendum on a new constitution when the Committee of Experts presented the final version to the Parliamentary Select Committee.
The experts reversed some of the decisions arrived at by the MPs team that reviewed the draft law in Naivasha last month.
The final version must now be tabled in Parliament by March 7 for approval or amendments, leading to a referendum in July.
In their final draft presented to the PSC yesterday, the Committee of Experts (CoE) reinstated several clauses the MPs had expunged from the draft.
The experts re-introduced sections of the Bill of Rights, enhanced the role of the Senate, removed assistant ministers and added the requirement that the president seeks parliamentary approval on all appointments other than those of judges.
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"We have in the last 21 days been crafting the proposed constitution in a manner that enables us to capture your input without sacrificing the views of ordinary Kenyans. Constitutional reform is not an event but a historical process, whose bedrock are the people of Kenya and their elected leadership," CoE chairman Nzamba Kitonga told the PSC during the handing over ceremony.
Kenyans will go for a single election on the second Tuesday of August of the election year if the draft sails through Parliament and passes the referendum test. The PSC had proposed that the presidential and parliamentary elections be held separately.
While the PSC draft did not require the president to seek parliamentary approval on major appointments, the new draft indicates that the president nominates then awaits parliamentary approval.
However, in the Judiciary, only the chief justice and his or her deputy will require approval from Parliament.
The Judicial Service Commission will nominate candidates to serve as judges, who will be appointed by the president, with MPs playing no role.
"The committee is of the view that this method of appointment does not only enhance the principle of separation of powers but it also insulates the Judiciary from political horse-trading and ethnic balancing considerations," Mr Kitonga said.
The CoE's final draft, however, gives the president exclusive authority to dismiss public officers without seeking the approval of Parliament. But in the case of the Judiciary, the dismissal will have to come from a tribunal.
In the new Executive structure proposed by the CoE, there will be no assistant ministers as "this would result in a bloated government, contrary to the wishes of Kenyans".
The new Cabinet will have 14 to 22 secretaries (new reference for ministers), who will not be MPs and who will be assisted by principal secretaries.On the Senate, the CoE enhanced its structure, giving it legislative powers and a role in the impeachment of the president.
On impeachment, the National Assembly will introduce the motion but investigations and approval of the impeachment will lie with the Senate.
In Naivasha, the PSC indicated in their revised draft that the Senate is the lower house with limited legislative role. But the CoE said that this would make the proposed presidential system "shaky" due to the lack of proper checks and balances.
"Without a structured Senate the pure presidential system would rest on a shaky foundation in terms of the absence of a critical check and balance. We have, therefore, recommended the retention of the Senate with some restricted legislative authority and as the trial chamber for the impeachment of the president and the vice-president," Mr Kitonga told the MPs in his address.
The CoE also said in a report accompanying the draft that it was important to exclude the Judiciary from the impeachment process as it is a political trial and it may be required as an avenue of appeal.
On the Bill of Rights, the experts re-introduced the economic and social rights and the right of all Kenyans to have access to information.
They also reinstated the rights of children and those of marginalised and vulnerable groups.
"The right to information is intimately linked to accountability. It is the means by which citizens hold the State accountable," the CoE report says.
The experts have retained the clause stating that life starts at conception but explain in their report that this contravenes the clause on the freedom of conscience, religion, belief and opinion.
They also indicate that the language used in the constitution on abortion "should not outlaw methods of fertility control such as emergency contraception".
Article 26(4) of the new draft now says: "Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law."
Devolution
On devolution, the experts enhanced the structure of the county executive committee by giving the governors and deputy governors executive authority.
The two will be elected directly during the elections and can only be removed through impeachment and not by a vote of no confidence.
The experts upheld the proposal by the PSC that the Administration and regular police fall under one command - the Inspector-General. This head of the force will have two deputies, each in charge of one of the units.
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