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FM AMEMBASSY NAIROBI
TO RUEHC/SECSTATE WASHDC IMMEDIATE 0062
INFO IGAD COLLECTIVE
UNCLAS SECTION 01 OF 05 NAIROBI 002514
SENSITIVE
SIPDIS
E.O. 12958: N/A
TAGS: PGOV KJUS KISL KDEM PHUM KE
SUBJECT: Draft Constitution Includes Powerful Prime Minister,
Stronger Local Government
1. Summary: The Harmonized Draft Constitution proposes significant
changes to executive powers, installs accountability mechanisms
throughout government, ushers in a new house of parliament,
reshapes the judiciary, and devolves power and some budgetary
control to local governments. The document shifts Kenya from a
powerful presidency to a hybrid system, with most affairs run by a
cabinet headed by a prime minister. Potential stumbling blocks
include executive power-sharing with a president; a prime minister
who is not directly elected; the lack of a one person - one vote
system; the details of devolution; and the recognition of Kadhi's
courts for Muslim civil matters. The public comment period on the
draft will end on December 17th. The Parliamentary Select Committee
will then propose changes before the draft is sent to Parliament
for discussion. Once Parliament approves the draft, it will be
forwarded to the Attorney General for publication. A referendum
could be held as early as April 2010. End summary.
2. (SBU) The Harmonized Draft Constitution of Kenya was released
on November 17th and is being discussed during a one-month public
comment period. Media outlets and civil society groups have done a
poor job of explaining the 165-page document to the public,
increasing the likelihood that changes will be decided by political
parties when the draft moves to parliament for approval before a
referendum can be held.
3. The draft moves most executive powers to a cabinet, headed by a
prime minister. The president will cede most of his current power
to Parliament and the cabinet, but will retain more than ceremonial
duties. This system prompts concern over the creation of two
centers of power. The draft also devolves more power to regional
and county governments, removes the current office-holders for
Attorney General and Chief Justice, retains Kadhi's courts for
Muslim civil law, and creates independent commissions as a check on
corruption and waste.
4. (SBU) The draft recalls many of the checks on executive
authority contained in the Bomas draft, before they were weakened
in the Wako draft that was eventually defeated in the 2005
referendum. The Bomas draft attempted to devise an equitable system
of executive power sharing, created a second house of parliament,
addressed devolution issues, and advocated a mixed member electoral
system that was more responsive to popular will. The Wako draft
weakened these provisions by allowing the president to unilaterally
appoint the prime minister, maintained one house of parliament,
kept the first-past-the-post electoral system allowing winners
without a popular mandate, and maintained the top-down Provincial
Administration system. The referendum failed largely due to
weaknesses in executive power sharing and an inability to devolve
power to local governments. The current draft attempts to correct
those deficiencies.
----------------
Executive Powers
----------------
5. The executive power structure proposed in the draft
constitution will weaken the presidency and vest most power in a
cabinet headed by a prime minister. Currently, the president serves
as the head of state and head of government, while the prime
minister may only "coordinate and supervise" the affairs of
government according to the power-sharing accord reached in
February, 2008. Under the proposed draft, the president will serve
as commander in chief of the armed forces, chair the National
Security Council, and will appoint state office holders and approve
legislation. The prime minister will serve as head of government
and will run day to day operations through the cabinet. This
transition will introduce a hybrid system, leaving the president
with some executive powers. The prime minister will select no more
than twenty cabinet ministers, who are subject to presidential
approval. Up to ten cabinet ministers may come from outside
parliament.
6. (SBU) Neither the president nor the prime minister will have
NAIROBI 00002514 002 OF 005
unchecked power under the draft, representing a significant
improvement from what Kenyans term the current "imperial
presidency." The president's decisions on appointments and
legislation will be subject to parliamentary approval. As the
president will not be allowed to hold high office in a political
party, that position could serve as a less-politicized check on the
cabinet. The prime minister must rely on presidential approval for
his appointments. He will serve as the most powerful figure in
parliament, but the cabinet will serve as a deliberative body that
could check some powers of the prime minister.
7. Some commentators are wary of a system where the prime minister
is not directly elected. The prime minister will be selected by
parliament and will be the head of the largest party or coalition.
While he or she will not be directly elected, voters will know
their party leaders before voting for their individual members of
parliament. Accountability will derive from the threat of a no
confidence vote if the coalition fails. Some advocate for a mixed
member proportional system where votes are cast for a member of
parliament and a governing party. The leader of the party with the
most votes would then become prime minister.
8. The president and prime minster will have little power to
remove each other from office. The president must approve the
leader of parliament as prime minister and cannot put forth his or
her own candidate. Once in office, the prime minister can only be
removed by a vote of no confidence, and cabinet officials can only
be removed by the president on the advice of the prime minister.
The president can only be removed by impeachment through a two
thirds vote in parliament, and only for incapacity or serious
breaches of the constitution or law.
9. The president will have little direct influence on domestic
affairs, either through approving legislation or directing cabinet
ministries. If the president vetoes legislation, parliament can
ultimately overrule his decision by a simple majority vote. The
president has no authority to direct cabinet ministries and can
only advise the prime minister on domestic issues. The prime
minister's only constitutional obligation to the president is to
keep him "regularly informed concerning the general conduct of
government."
10. The president and prime minister overlap in the areas of
defense and foreign affairs. While the president will serve as
commander in chief, chair of the National Security Council, and can
commit troops with parliamentary approval, the cabinet will oversee
the Ministry of Defense. The president may also appoint diplomatic
officials and sign international treaties with parliamentary
approval, while the cabinet will oversee the Foreign Ministry. The
policy divide between the two is unclear. This will likely result
is public disagreements, but the prime minister will be empowered
to guide policy through the cabinet on most issues.
---------------------------
Empowering Local Government
---------------------------
11. The proposed system of devolved government will give regions
and counties greater power to collect taxes and coordinate their
own affairs, though the size of the bureaucracy is likely to
increase as a result. The current Provincial Administration system
is directed mainly by the national government and there is little
budgetary or policy independence at the local level. This system
will be eliminated under the draft by creating eight regional
governments and 74 county governments. Each government will have
its own assembly, executive, and civil service staff.
12. Devolved government will aim to remove the current top-down
approach where Nairobi dictates most policies to provincial
governments. Each region and county will be able to levy taxes to
support its activities, and will have greater control over its own
budget though some linkages with the national government will
remain. The proposal is embraced in many regions, especially by the
Muslim community in Coast province who want greater autonomy to run
their own affairs. Opponents argue that operating national,
regional, and county governments is excessive and not financially
feasible.
---------------------------
New Structure of Parliament
---------------------------
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13. Two houses of parliament are established in the draft: a
National Assembly based on the current constituency system and a
Senate with representatives from all the newly-created counties in
Kenya. The National Assembly will retain most of its current
powers. The Senate will be more responsive to the needs of devolved
governments given its connection to counties. Speakers of both
Houses of Parliament will be elected from candidates who are not
members themselves. No members of parliament may be appointed.
14. The National Assembly will hold greater powers than the
Senate. Both houses must consent on most legislation, but the
Senate's assent is not required on bills relating to financial
issues or appropriations. The Senate does have primary
responsibility for presidential impeachment hearings, though the
petition must originate in the National Assembly.
15. Women, minorities and disabled citizens stand to make
parliamentary gains through set-asides. Women will comprise at
least one third of the seats in the National Assembly, which will
be partly achieved by each of the 74 counties electing a woman to
the 299 member body. The Senate elects two women from each region,
representing 16 women in the 99 member body. Set asides will also
benefit the disabled, marginalized communities, and youth to a
lesser degree.
16. Political parties are concerned about the lack of a one
person, one vote system in the draft given that the prime minister
will be elected from the National Assembly. Currently there is no
proportional representation among constituencies with the smallest
constituency holding the same number of votes in the National
Assembly as the largest which has eighteen times the population. If
the prime minister is to be elected from members of the National
Assembly, constituencies roughly equal in population will be needed
to equalize votes in parliament. The Independent Electoral and
Boundaries Commission will play a key role in establishing
constituencies, but they have few specific guidelines in the draft
regarding how to achieve parity.
-----------------------------------
Judicial Vetting and Kadhi's Courts
-----------------------------------
17. The judiciary will be revamped with the addition of a Supreme
Court and separate Constitutional Court among the superior courts.
Commentators question the need for another body given the existence
of the current High Court, Court of Appeals, and Constitutional
chamber within the Court of Appeals. The Supreme Court will be the
superior body, except in cases of election petitions in which case
the Constitutional Court will have final jurisdiction.
18. All current judges will either retire or submit to a vetting
process before they can be reappointed under the new constitution.
Judges oppose this process as it places a greater burden on them
than on other public officials, such as members of parliament who
will retain their seats until the next election and are not subject
to vetting. However, independent commentators support vetting as
the only way to root out corruption in the judiciary. An Interim
Judicial Services Commission will vet each judge. The Commission
will be appointed by the prime minster and consist of two
non-citizen judges, two Kenyan judges, and an advocate.
19. The draft retains the Kadhi's court's jurisdiction over civil
issues between Muslims, despite growing opposition among Christian
leaders. Muslim leaders call for expansion of the courts throughout
Kenya. Christian leaders call for removal of the Kadhi's courts
altogether, amid fears of an expansion of sharia law. The Kadhi's
courts have been in place for decades and have operated alongside
civil courts, but both sides are using the draft as an opportunity
to rekindle debate on the scope of the courts. The draft calls for
a separation of religion and state, and declares that all religions
should be treated equally.
----------------------------------
Accountability and Anti-Corruption
----------------------------------
20. New regulations increase independence of the police and
prosecutors. The position of Inspector General of Police will be
created to run the police service, in lieu of the internal security
minster directing the police commissioner under the current system.
The internal security minister may direct the inspector general on
policy issues, but may not request or interfere with specific
NAIROBI 00002514 004 OF 005
investigations. A new Office of Public Prosecutions will be
independent of the attorney general, and a new Office of the Public
Defender will coordinate legal aid to the indigent. (Note: Under
current law, only indigent defendants charged with capital crimes
are entitled to representation. End note.)
21. The current attorney general, chief justice, and auditor
general must all be removed and replaced by new office-holders
under the draft. The chief justice may serve on the Court of
Appeals if he is vetted by the Interim Judicial Services
Commission. No provisions are made for future positions for the
attorney general or auditor general.
22. Members of parliament will be required to pay taxes and
publicly declare their assets under new regulations. The
independent Salaries and Remuneration Commission will set salaries
for all public officials, including members of parliament. The
controller and the auditor general are separated into two offices
and are not subject to direction from any other organ of
government. Finally, all state officers, including parliamentarians
and judges, must submit asset declarations that will be made
available to the public.
23. The Ethics and Anti-Corruption Commission (EACC) will replace
the Kenya Anti-Corruption Commission. The new body will have the
authority to receive and investigate complaints, but must refer
complaints to "relevant authorities" for action. The relationship
between the EACC and prosecutors or the judiciary is unclear. The
EACC will also maintain a register of assets for state officers and
make it available to the public.
-------------------
Timeline and Process
--------------------
24. A referendum on the draft constitution is unlikely to be held
before July 8, 2010 at the earliest. The public comment period will
end on December 17th, though there have been calls for a two month
extension. If no extensions are granted, the Committee of Experts
(CoE) which oversees drafting will incorporate public comments and
present a new draft to the Parliamentary Select Committee (PSC).
The CoE will then receive comments from the PSC and return a new
draft to the National Assembly by late February, 2010. Parliament
then has fifteen days to review and approve the draft, or submit it
back to the CoE for more revisions. If revisions are requested, the
CoE will return the draft within seven days at which time the draft
must be approved by Parliament within 14 days.
25. (SBU) An April referendum is being talked about, but seems
unlikely. The Interim Independent Election Commission is still in
the early stages of organizing itself. July seems a more likely
target date for a referendum, given the need to complete a new
electoral registry and to carry out other preparations. The
referendum will be in danger if it is delayed to mid-2010 as
attention shifts to the pre-election period. A politicized debate
could derail the process if key personalities make their
aspirations known within the context of the draft ahead of
elections. It is essential that President Kibaki and Prime Minister
Odinga reach agreement on the structure of executive power in order
to avoid a divisive referendum, which would be disastrous for the
country.
26. If a referendum passes, parliament will face great burdens to
implement the constitution and may be dissolved if it refuses to do
so. At least 72 bills must pass in order for the constitution to
take full effect: two within six months, 34 within one year, 22
within two years, and 14 within three years. Parliament may extend
the timeline for any bill by one year with a two thirds vote.
Ultimately, if parliament does not pass the required implementing
legislation, the Chief Justice must petition the President who must
dissolve parliament and call for new elections. A newly elected
parliament would then be responsible for passing implementing
legislation for the new constitution.
--------------------------
Potential Stumbling Blocks
--------------------------
27. (SBU) Diverse interest groups are opposing provisions of the
draft, prompting fears that they could unite in a loose coalition
to defeat a referendum. The division of executive power is
controversial among political parties who want to retain either a
powerful presidency or a true parliamentary system with only a
NAIROBI 00002514 005 OF 005
prime minister. Various Christian groups, including powerful church
leaders, are opposed to the retention of the Kadhi's courts. They
may campaign to oppose the draft even though to do so would
maintain the status quo which includes the courts. The judiciary is
opposed to the vetting requirement as it violates their security of
tenure. Some judges would accept the vetting mechanism, but only if
they continued to serve during the vetting process. To date,
interest groups have not coordinated efforts, but this could change
if the draft moves towards a referendum. We are in touch with key
interest groups and the political leadership in an effort to
encourage compromise and broad support for the final draft.
RANNEBERGER
RANNEBERGER