By Correspondent

With the expected presentation of the Building Bridges Iinitiative (BBI) report to President Uhuru Kenyatta anytime Kenya is where it was in January 2010.

The Star on Saturday gave a detailed account of the journey the reforms process took before the 2010 was enacted.

Then, just like today, there was heated debate on whether the country needed an executive president, an executive prime minister or both sharing executive power.

After public participation, the experts driving the review process concluded that a hybrid system was best as either a parliamentary or presidential system would polarise the country. 

However, two weeks after presenting this finding, the political class in a give and take compromise settled for a presidential system during a two-week retreat in Naivasha.

Nine years later, Kenya appears be grappling with the same question on the best system of government.

On January 8, 2010, the then Committee of Experts on the Constitution Review process published a report on public review of its harmonised draft.

The 22-page document summarised Kenyans’ review of the draft that shaped the revised draft the CoE gave to MPs before the controversial retreat in Naivasha.

At the time, the CoE said it had received 39,439 memoranda, with 25,907 coming from individuals.

Most of the memoranda received expressed perspectives on the chapters CoE had originally identified as contentious.

These were chapters pertaining to the proposed system of government: The Executive and Legislature, Devolution and Transitional Clauses.

After reviewing comments on the harmonised draft, CoE stuck to its proposed hybrid system, where a President and Prime Minister would share power.

This proposal was, however, trashed on the night of January 20 and the morning of January 21, 2010 by the Parliamentary Select Committee in a meeting in Naivasha.

CoE PROPOSAL

According to the COE report, more than 95 per cent of the submissions received by the Committee related specifically to the nature of the Executive.

A key take out from the report was that Kenyans felt that the structure of the Executive in the draft was ambiguous, “…and would be unworkable because it could lead to frequent tensions between the President and the Prime Minister, especially when they come from different parties”. 

The CoE said after reviewing the comments, there was the preference for a President and Prime Minister but there should be a proper delineation of powers between the two offices.

The experts also concluded that Kenyans were clear that whatever form is adopted, the country’s chief executive should be elected by members of the public, whether it is a president, prime minister, or both.

“In considering these views, the committee stands by its original assessment made after holding public hearings that a presidential or a parliamentary system would polarise the country,” the CoE concluded.

The CoE then tweaked its the draft to clarify that executive authority under the constitution derives from the people and shall be exercised by their elected representatives in accordance with the Constitution.

“The executive is defined more clearly, with the authority of the State President in decision making delineated, and the holding of regular consultations between the State President and the Prime Minister elaborated,” the CoE report said.

This revision meant that while the Prime Minister would run government, the State President would have a supervisory role.

In the revised draft handed to the PSC, the Prime Minister would report to the President as an oversight mechanism.

THE NAIVASHA TURNAROUND

As MPs headed to Naivasha on January 18, just 10 days after the CoE report, they were divided along the party lines on the nature of the Executive the Constitution should have.

Former President Mwai Kibaki’s side -PNU – was in favour of a presidential system with the President as both the Head of State and Head of Government.

On the other hand, former Prime Minister Raila Odinga’s ODM wanted a parliamentary system with a ceremonial president. In this system, MPs would elect a Prime Minister who would be the Head of Government.

In Naivasha, the 26-member committee concluded that Kenyans wanted to elect the President directly, thus killing the hybrid system proposed by the CoE.

On January 20, 2010, the MPs spent the entire afternoon and the better part of that night trying to get consensus on the form the Executive should make.

Uhuru, then Deputy Prime Minister and de facto leader of the Kibaki did not actively participate in this discussion though his PNU team used all means to sway support for the Presidential system.

Most of Raila’s men in Naivasha did not have strong views in support of the parliamentary system, which was the party position before the Naivasha retreat.

Only then Lands Minister James Orengo and then Chepalungu MP Issac Rutto appeared to vocally support the Parliamentary system.

Then Agriculture Minister William Ruto, Narc leader Martha Karua and former Garsen MP Danson Mungatana were the most vocal during the debate — mostly in support of a presidential system.

Karua insisted that the presidential system was best placed to cater for the interest of Kenyans, especially women and the minority.

In her contribution, she noted that parliamentary systems worked well in other countries due to party lists.

“I would be persuaded to take parliamentary if no Members of Parliament are vying for any constituency, it is a party list. That is a system that is good. It takes the parties round the country. It forces you to pick your list from all over the country because if you go to an area you have not picked the list from, they will not listen to you,” she said.

Ruto, then an ODM member, appeared to take the middle ground before eventually moving to give key proposals in support of the presidential system, which the PSC eventually adopted.

“In my mind, the mischief is not the presidential system or the parliamentary system, rather it is accountability,” Ruto told his colleagues at the beginning of the debate on January 20, 2010.

Ruto also said he has always believed in a parliamentary system, but they must deal with the fact that Kenyans seem to be saying they want to elect their chief executive.

“I have heard people say that we elect the President or the Prime Minister so long as he is elected directly by the people. People cannot elect a Prime Minister directly. Let us be honest about that. Let us not mislead the public that they can elect a Prime Minister directly,” Ruto said.

With MPs starting to complain that they were getting tired, Ruto took the floor and proposed that they should put in place a system of government with a president elected by universal suffrage as head of state and government.

“Let us separate the Legislature from the Executive; let us have all ministers coming from outside; let us elevate the status of parliamentary committees to that of ministers so to speak in terms of how they are treated; let have a good devolved strong system complete with a senate,” Ruto said.

His proposal earned the support of most of his colleagues, with the late Mutula Kilonzo — then Justice Minister — adding two other conditions. That Parliament gets its own independent calendar: and parliamentary and presidential elections to be held separately.

From the ODM side, only Orengo appeared to have an issue with the discussions being closed on the assumption that only the presidential system was on the table before the meeting closed on January 20.

“For very good reasons, I think depending on how this discussion goes, and I want it to succeed, the parliamentary system is still on the table,” Orengo said before the meeting adjourned.

The following morning, the MPs continued with the debate and it was agreed that they would refine a presidential system.

PSC CONCLUSION

In its post-Naivasha report to the CoE, the PSC proposed that there be a clear separation of powers between the Executive and other arms of government.

The MPs also proposed that the President be elected by universal suffrage, with a majority vote of 50 per cent plus one vote and wins 25 per cent in more than half the counties.

They also said the President would be the Head of State and Government and he or she should have a running mate in the election.

The MPs also proposed that Cabinet ministers should not be members of Parliament but be nominated by the President and approved by the National Assembly.

The PSC also recommended that the Cabinet should consist of not more than 25 ministers and that not more than two-thirds of the Cabinet should be of either gender.

The Cabinet should reflect the regional diversity of Kenya, the MPs said in their 13-page report after the Naivasha retreat.

They also said the President should have the power to establish offices, other than constitutional offices, in the public service