Kenya’s draft moves on…

Kenya’s draft Constitution moves today to the office of Attorney General Amos Wako, who has four weeks to prepare the text for public referendum. The current text is the same as that forwarded by the Committee of Experts to the Parliament in late February—Parliament debated but failed to pass some 100 proposals for amendment. Prime Minister Raila Odinga called for no further amendments (perhaps thinking about Wako, whose earlier draft constitution was key to the unraveling of the prior process in 2005). So it seems that this draft will likely be the final product, or very close to it.

Some observations on the draft: It is a significant improvement over earlier versions in the process, on a number of dimensions. Although the draft establishes a presidential system, which has led to some concern given the troubled history of presidentialism in Africa, this is probably preferable to the semi-presidential system that was initially proposed (though arguably inferior to the parliamentary model). There are a number of independent commissions with some institutional protections, though limited powers. The parliament will have a role in approving appointments and so this may form some check on the president. The devolution scheme, which was a major focus of debate, will establish 47 counties which are to be the primary subnational unit. The counties are represented in the Senate, which has legislative powers for topics related to subnational governance.

This is not to say that all is perfect in the draft. 47 counties is both a large number, requiring much administrative duplication, and a small number, in that local government will be relatively far from the communities on the ground. These units may be susceptible to capture and domination by one or the other group in any given geographic area.

The election system, at both levels of government, will involve special seats to represent women, the disabled, and other groups, but the process for picking these seats is unwieldy: they will generally be apportioned to political parties on the basis of the seat totals (not vote totals) earned in the relevant general election. Without any provision for dealing with electoral remainders, these will likely be a source of contention. Other looming electoral issues: Art. 137 implicitly prohibits cabinet members from being nominated for president (because they cannot serve as members of parliament). This seems unwise, as it may discourage strong leaders of smaller parties from entering the cabinet, undermining national cohesion. The draft also adopts a ban on ethnic or regional parties—such bans are typically ineffectual, and may have perverse side-effects if the government uses the prohibition to outlaw opposition parties.

Constitutional politics around the draft are heating up. Certain church groups are opposing the draft because it restored some limited possibility of abortion under conditions of medical necessity, and because it allows for jurisdiction of kadhi courts over some limited issues of Muslim personal law. These issues have plagued Kenya’s constitution-making efforts for some time, and the draft handles them in a compromise fashion. Indeed, by declaring that life begins at conception (a position shared by all religions) the draft already reflects some capture by the Christian groups. No doubt there will be many other issues raised in the forthcoming campaign. Under the transitional provisions Art 12(3), current President Kibaki seems to be prohibited from running again, so this may lead to some opposition, though I’m too poorly informed about Kenyan politics to know if this is really an issue.

–TG