The Constitution Review Process

The latest in the battle for supremacy starring the MPs and the MPs, is centered on the constitutionality of the constitution. Funny, I know!

The constitution review process hits parliament this week. May it be known that the constitution grants only a 30 day window for the parliament to discuss the proposed draft of the new Constitution. Our dear MPs have spent 20 of those days in waste of money retreats looking for the so-called consensus. I am all for consensus but, our MPs give that word a totally new meaning. The retreats were seen as an opportunity for them to try and rewrite the draft. They wanted to create more power for themselves.

But back to the constitutional review process,
The Parliamentarians argue that the Committee of Experts can not have more powers than the Parliament. They want the power to rewrite the draft constitution.

The Constitution of Kenya review, 2008 Act (CAP 9) which is the guiding law on the review process states that:-

Section 33 (1) If the Parliamentary Select Committee shall, within twenty-one days, resubmit the draft Constitution and report presented to it under section 32(c) to the Committee of Experts with the recommendations agreed upon as a result of its deliberations, and the Committee of Experts shall revise the draft Constitution taking into account the achieved consensus.

(2) The Committee of Experts shall submit the revised draft Constitution and its final report to the Parliamentary Select Committee within twenty one days.

(3) The Parliamentary Select Committee shall, within seven days of receipt of the report and the draft constitution under subsection (2), table the report and draft Constitution before the National Assembly.

(4) The National Assembly shall, within thirty days of the tabling of the draft Constitution under subsection (3), debate it and -

(a) approve the draft Constitution without amendment and submit it to the Attorney-General for publication; or

(b) propose amendments to the draft Constitution and submit the draft constitution and proposed amendments to the Attorney-General, who shall, within seven days submit them to the Committee of Experts for consultation and redrafting.

(5) Where the National Assembly submits the draft Constitution to the Committee of Experts for consultation and redrafting under subsection (4) (b), the Committee of Experts shall, within seven days of receipt of the draft Constitution, consider the proposed amendments and submit the draft Constitution to the National Assembly.

(5A) The National Assembly shall consider the draft Constitution submitted under subsection (5) in accordance with the provisions of section 47A(2)(b) of the Constitution.

(6) If the National Assembly fails to approve the draft constitution in accordance with subsections (4) and (5), a joint meeting between the Parliamentary Select Committee and the Committee of Experts shall be convened by the chairperson of the Committee of Experts to consider the issue or issues and to make recommendations to the National Assembly.

(7) In considering issues not approved by the National Assembly, the meeting convened under sub section (6) shall invite the Reference Group to make recommendations on how the issue or issues may be resolved.

(8) The meeting convened under subsection (7) shall be held in consecutive sessions over a period of not more than seven days and shall be chaired by the chairperson of the Committee of Experts.

(9) Upon decision of the meeting, the Committee of Experts shall, within seven days, revise the draft Constitution and submit a report and the new draft Constitution to the National Assembly.

(10) The National Assembly shall within twenty-one days approve the draft Constitution and submit it to the Attorney-General for publication.

Section 33 of CAP 9 clearly states that, the power given to the Parliament in the review process. The Parliament is supposed to debate the proposal and if a simple majority is in agreement the same can be approved. Further, the act gives the parliament the power to vote on proposed changes of which the same will be forwarded to the Committee of experts who together will consider the proposed changes and may make the changes. What I think really gilds them is, the changes can be rejected and the draft can still make it to the referendum.

On a personal level, I do not think the draft is perfect but I have bigger issues with the proposals being put forward by our dear MPs. I have never understood the relevance of a Majimbo system to a country so divided. What it spells out, for me, is the desire for politicians to keep the country divided enough for all of them to be presidents. They want more power and how else to get that to play one against the other.

Let us hope that whatever the outcome, the Kenyan people are the Victors.