Unveiled: Key steps to the new Constitution

According to proposals by a team of mediators, the committee will be appointed by Parliament and the team of eminent Africans who helped negotiate an end to the post-election violence.

The violence left more than 1,200 people dead and about 300,000 displaced following the announcement of  presidential election results on December 30, last year.

Four of the committee members will be recruited based on their expertise, while three will be named by the eminent persons, headed by former UN secretary-general Kofi Annan.

According to the proposed plan, issues on which the PNU and ODM coalition agree will be put to the vote in a referendum in one batch for adoption or rejection.

Those on which the two sides do not agree will be presented to the voters separately, with the two positions spelt out for the voters to decide which side wins.

The side with the highest number of votes will be deemed to have won the day, according to the draft prepared by the team of mediators meeting under the chairmanship of Nigerian diplomat Oluyemi Adeniji.
Members of the team are Deputy PM Musalia Mudavadi, Cabinet ministers Martha Karua, Mutula Kilonzo, Moses Wetang’ula, William Ruto and James Orengo.

The issues which were listed as contentious include whether Kenya should remain a presidential system or adopt a parliamentary system where the PM will have overall  executive authority.

Other issues of disagreement are over  devolution of power, affirmative action, land, property and religious courts.

The document is prepared by Justice minister Martha Karua and agreed on by the members of the National Dialogue and Reconciliation teams.

However, to be considered for the job, the experts will be required to have training and knowledge in comparative constitutional law, systems and structures of democratic governments, land and land law, and public finance and administration.

Accountability

They are also expected to be knowledgeable in issues regarding electoral systems, designs for democratic elections, anthropology and governance, ethics and accountability.

Last week, both ODM and PNU negotiators said that the draft was still subject to discussions and could be amended from time to time.

They confirmed that the Kenya Law Reform Commission had been instructed to refine the document with a view to finalising it as the most appropriate roadmap.

According to the document obtained by the Nation, the constitutional experts will be mandated to identify issues in all the available drafts on the constitution, which are contentious and which are not.

Some of the contentious issues that arose from the Bomas draft included devolution, the executive, electoral systems, land and property, religious courts among others.

They will then be expected to solicit from the public written memoranda on the contentious issues, after which they will aid in the resolution of these issues by articulating the merits and the demerits of these options.

“This should be in the context of the greater good of the people of Kenya and making recommendations as appropriate,” reads the concept paper.

Contentious issues

The constitution experts will then be expected to prepare a draft constitution with all the issues that are not contentious and the contentious ones clearly marked with accompanying notes explaining the merits and demerits of each options and recommendations.

They will then be expected to present this draft to the Parliamentary Select Committee on Constitutional Review with a request that the committee deliberate and achieve consensus on the contentious issues in view of the recommendations by experts.

They proposed that this Parliamentary Select Committee should be constituted as soon as Parliament reconvenes in two weeks.

This committee will be expected to steer the enactment of the Constitution of Kenya (Review) Bill 2008 and the constitution of Kenya (Amendment) Bill, 2008.

On Monday, Ms Karua hinted that members of the law reform commission were in the final stages of drafting a Constitutional Bill, which will be tabled in Parliament next month for debate.

She said the House will prioritise debate and passing of the Bill to kick-start the stalled review process.

These Bills will be expected to establish how the review process will be funded, amend sections 46, 47, 54, and 60 of the Constitution for purposes of making the new document and entrench the review process in the current Constitution, among others.

The select committee will also be expected to appoint the secretary and four deputies to the team of experts to achieve consensus on the contentious issues and provide general oversight of the review process.

The consensus

The team of experts will then finalise the draft constitution incorporating the consensus achieved by the PSC on constitutional review.

In the event that there will be consensus by the PSC on the review process, the draft constitution will be presented as a whole to the referendum.

However, where the consensus is not achieved within the select committee on the review process, the non-contentious clauses will be presented as a whole for consideration and adoption.

http://www.nationmedia.com/dailynation/nmgcontententry.asp?category_id=1&newsid=124221

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