Blog of the International Journal of Constitutional Law

Kenya process moves forward…

Kenya’s Parliamentary Select Committee has now returned the draft constitution—heavily modified—to the Committee of Experts for reconsideration. The major change was dropping the semi-presidential system in favor of a pure presidential system with a directly elected president, reflecting demand from the public for greater clarity and clearer channels of accountability.

The switch from semi-presidentialism is interesting on a number of dimensions. It upends a bargain among the two leading political factions around Prime Minister Odinga and President Kibaki. With only one political prize to fight for, the stakes are higher and so competition will be intensified, hopefully without the horrific violence that accompanied Kenya’s last election.

Another implication concerns drafting processes. In the 1990s, Jon Elster argued that constitutions ought to be written by specially constituted constituent assemblies because legislatures would engage in self-dealing if they were involved in the process. In a recent empirical examination, we did not find evidence that parliament-centered drafting exercises produced constitutions with more parliamentary power. One might see the Kenyan parliament arguing for presidentialism as data point in this regard (though of course one can have fairly strong legislatures in presidential systems.)

We have not yet seen the draft, but it was reported that the PSC also removed the Human Rights Commission, the National Land Commission and the Gender Commission from the draft. The MPs proposed that instead of entrenching these commissions in the constitution they should be stipulated by Acts of Parliament. Parliament has an expanded number of constituencies in the draft, and there were modifications to the proposed system of devolution, a crucial political issue in Kenya. There were a few other smaller changes too, such as removing the entrenchment of Nairobi as the capital.

The Committee of Experts now evaluates the changes and will return the draft to parliament by February 25. Parliament then debates the draft for 30 days. If approved, the process jumps to publication of new constitution by April 26 then referendum on June 26.


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