WHITE SMOKE

The hybrid system proposed by Committee of Experts on Constitutional Review will not be on your referendum ballot paper.

The system would have seen Executive authority shared out between a President and a Prime minister.

The Parliamentary Select Committee on constitutional review, to which CoE handed the revised draft, plans to refine two sets of draft from which Kenyans will pick either a presidential or parliamentary system. This way, the House Committee expects to easily seal a deal on the clauses that were slowing progress towards a new constitution.

President Kibaki and Prime Minister Raila Odinga surrendered the task of hammering out a consensus to PSC, which began meeting in Naivasha yesterday. The PSC retreat, coming after last week’s open disagreement by a bipartisan committee of Cabinet reporting to Kibaki and Raila, kicked off in a Naivasha hotel with members exuding confidence a consensus was within reach.

The talks began with minor changes to the first seven chapters of the Revised Harmonised Draft. Sources at the meeting said the 25 members in attendance largely agreed on key issues.

"We have started well and we have adjusted a few things, which will be revealed later," said a source that sought confidentiality. "There is an atmosphere of give and take and we intend to build on that."

Issues deliberated on included the document’s preamble, sovereignty of the People of Kenya and supremacy of the Constitution. A source said at least there were amendments to articles ranging from one to 12 in the draft. Others areas covered included, national values and culture, citizenship, land and environment, and leadership and integrity.

While yesterday might have seen a general consensus, today presents a real litmus test to the team led by Mandera Central MP Abdikadir Mohamed as it focuses on emotive chapters on the Executive and the representation of the People.

A section of MPs said lawyer members were accorded more time yesterday to shed light on the "grey areas" before the others were allowed to give their input.

"We are working on the document. We are not here to merely rubberstamp the document prepared by the Committee of Experts," said a PNU member.

The minister said his side of PSC membership would not give in to any attempts to trim presidential powers and vest them in the PM.

"Come tomorrow (today), our position will remain the same, we want nothing less than an executive President elected by the people of Kenya. We will, however, accept a hybrid system modelled like the Tanzanian system simply to accommodate our colleagues’ desire for a premier," said another member.

Secret copies of PSC working documents shown to The Standard showed the controversial hybrid system was off the table. Instead the 26-member committee will now choose a presidential and parliamentary model of government.

In the documents, which will be used by the committee as guidelines on the Executive, the features of both systems are outlined.

Yesterday, while addressing PSC members, Vice-Chairman Ababu Namwamba admitted the committee faced various hurdles in agreeing on contentious issues. He told the members this was the fifth PSC on reforms since 1989 and all its predecessors failed. "We hope this time round we shall break the jinx and go down in history as the committee that gave Kenyans a new constitution," he said. "Forty million Kenyans are watching us and we hope at the end of the retreat there will be white smoke billowing from the chimney."

This is a reference to the Vatican’s way of signalling consensus in the election of a new pope.

According to the documents, the Parliamentary System is divided into two, where in one model, there is a clear differentiation between the Head of Government and Head of State, with the Head of Government being the PM and Head of State (considered the figure-head) being a president or a monarch (in cases of constitutional monarchy). In this model the President can either be elected through the universal adult suffrage or by Parliament. Such models are found in the UK, Canada, India and Germany among others.

In the second model, there is fusion of the functions of both Head of State and Head of Government in one person or office. South Africa and Botswana are best examples on this.

Though the President is the Head of State and Government in the presidential system, he or she is not an MP and can only make appointments to the Cabinet, public offices and the Judiciary, if Parliament approves his or her nominees to these offices. He or she also has no powers to dismiss or order judges but appoints and dismisses the Cabinet. The president is also the Commander-in-Chief of the armed forces.

The decision to consider the two forms of government goes against resolutions of a meeting of the Cabinet Management Committee, where all three forms (Parliamentary, Presidential and Hybrid) were discussed. The Cabinet team last week met under Kibaki and Raila for over four hours but deadlocked, leading to the surrender of consensus building to PSC.

Most striking in the two alternate systems PSC is expected to fine-tune today, is that in the Presidential System, the Cabinet is drawn from outside Parliament, while in the Parliamentary System the Cabinet is drawn from Parliament.

The documents outline a Presidential System that has strong checks and balances through an independent Judiciary, regional governments (as is the case with US federal states) and a strong House of Senate.

Whereas the Presidential System ensures a stable government that is not prone to no-confidence proceedings and coalition instabilities, the discussion notes out that it is susceptible to promoting personality cult, and undermine popular democracy.

"If the electoral, legal and governance systems are not well designed and effectively operationalised, there is a high risk of one or a few groups permanently dominating the rest," cautions one of the documents.

In the Presidential System, the president can be elected through direct suffrage (popular vote) or by college, or a combination of both, as is the case with the US.

Ethnic divisions

On the other hand, they point out that Parliamentary System is workable in countries that are ethnically and racially divided.

The MPs propose amendments to ensure no person should take the oath of office should his election become a subject of a petition.

"No public officer may administer such oath or affirmation to such person until such petition is conclusively determined," adds the document.

Also to be debated is a proposed amendment requiring that statutory forms of presidential and parliamentary elections be filled and openly collated in the presence of authorised agents, and a copy of each announced result be posted in a public place for viewing by wananchi.

The MPs also wish to set the number of constituencies at not more than 270 and not less than 210, while they intend to fix the number of regions at 14 and total number of counties at 47. Sources within PSC said differences are narrowing and a deal is likely to come through at the end of the retreat.