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C O N F I D E N T I A L SECTION 01 OF 06 NAIROBI 000149 
 
SIPDIS 
DEPT FOR AF/E DRIANO 
 
E.O. 12958: DECL: 2020/02/08 
TAGS: PGOV PREL PHUM KE
SUBJECT: Constitutional Review Update and Next Steps 
 
REF: 10 NAIROBI 81; 10 NAIROBI 29 
 
CLASSIFIED BY: Mitch Benedict, Political Counselor, State, Political; 
REASON: 1.4(B), (D) 
 
¶1. (C) Summary: On January 29 the Parliamentary Select Committee 
(PSC) reached 
 
agreement on what are considered the most contentious issues (the 
executive 
 
structure, devolution of authority, and transition arrangements) in 
a revised draft of 
 
the constitution. The PSC sent its recommendations back to the 
Committee of Experts 
 
(COE), which must make final revisions to the draft by February 18. 
The agreement 
 
by the PSC (which is composed of the key representatives of 
President Kibaki and 
 
Prime Minister Odinga) represents a major positive step forward in 
the 
 
constitutional review process. Further to our previous reporting, a 
number 
 
of the members of the PSC have confirmed that U.S. public and 
private 
 
pressure, particularly through the calls by the Secretary and 
President, 
 
played a key role in influencing the members of the PSC to achieve 
 
compromise. The COE has asked the U.S. to help provide two experts, 
one on 
 
technical drafting, and one constitutional expert on how the U.S. 
system 
 
works (since what the PSC adopted is essentially a U.S.-type 
presidential 
 
system). We will provide these experts through an existing USAID 
 
mechanism. We are quietly encouraging the COE to work within the 
parameters 
 
of the PSC compromise. After the COE completes its work by Feb. 18, 
it 
 
presents the draft back to the PSC, which must then table the draft 
to the 
 
full Parliament within one week. End Summary. 
 
 
 
Agreement on Key Issues 
 
 
 
¶2. (C) Following eleven days of often intense marathon sessions 
held at a lodge 
 
in Naivasha, the 26-member Parliamentary Select Committee (PSC) on 
the 
 
review of the constitution reached political compromises on all the 
key 
 
contentious issues, and handed their recommendations back to the 
Committee 
 
of Experts for inclusion into the constitutional draft. 
Representing 
 
President Kibaki's PNU alliance were Uhuru Kenyatta (Deputy Prime 
Minister 
 
and Minister of Finance), Mutula Kilonzo (Minister of Justice and 
 
Constitutional Affairs), Moses Wetangula (Minister of Foreign 
Affairs), and 
 
NAIROBI 00000149  002 OF 006 
 
 
Martha Karua (former Minister of Justice). Heavy hittters from 
Prime 
 
Minister Odinga's ODM included: Musalia Mudavadi (Deputy Prime 
Minister), 
 
James Orengo (Minister of Land), William Ruto (Minister of 
Agriculture), 
 
Sally Kosgei (Minister of Higher Education), Najib Balala (Minister 
of 
 
Tourism), and Charity Ngilu (Minister of Water and Irrigation). 
Among other 
 
issues, the PSC addressed the key contentious issues of the nature 
and 
 
structure of executive power, the devolution of power, 
representation, and 
 
transition arrangements. 
 
 
 
¶3. (C) On the question of the executive, the COE had proposed a 
draft 
 
constitution with a hybrid system of government that included both 
a 
 
president and prime minister. The PSC rejected the hybrid system 
and came 
 
out in favor of a presidential system with checks and balances. The 
 
president would be directly elected by a 50 percent plus one vote 
(and would 
 
have to win at least 25 percent of the vote in more than half the 
counties) as 
 
both head of state and government. Members of cabinet (to be 
"Secretaries" 
 
vice Ministers), would be appointed from outside parliament, and 
any 
 
Member of Parliament appointed to cabinet would have to relinquish 
 
his/her seat. The cabinet would consist of not more than 25 
members. 
 
Parliament would have the power to control its own schedule and vet 
and 
 
approve key appointments of the president, such as members of 
cabinet, 
 
constitutional office holders, and ambassadors. Parliament also 
could 
 
impeach the president. 
 
 
 
¶4. (C) With regard to devolution, or decentralization of power, the 
PSC opted 
 
for a two-tier system of government as opposed to the three tier 
system of 
 
local, regional, and national government as mooted in the COE's 
draft. The 
 
PSC supported the creation of 47 counties as proposed in the COE 
draft. 
 
The proposed counties would be based on and identical to the 
existing 
 
districts prior to 1992. Each county would have an assembly and an 
elected 
 
NAIROBI 00000149  003 OF 006 
 
 
county executive, and would elect one person to represent the 
county at the 
 
national level in a Senate, which would be a lower house of the 
bicameral 
 
legislature. The Senate would deal only with issues pertaining to 
the 
 
counties and would not legislate on national issues. Specifically, 
the 
 
membership of the Senate would be set at 63 -- 47 elected, and 16 
special 
 
seats for women, minorities, and the disadvantaged. The PSC 
recommended 
 
that the system of Provincial Administration be retained, 
presumably under 
 
the Office of the President as now exists. Therefore, the county 
councils 
 
would have both executive and legislative functions, but would be 
tightly 
 
limited to only very parochial issues. 
 
 
 
¶5. (C) The most talked about recommendation of the PSC is the 
expansion of 
 
Parliament from the current 210 constituencies to 290 elective 
 
constituencies, plus 47 additional county representatives (to be 
all women 
 
for a period of 20 years), and 12 nominated seats for a total 
National 
 
Assembly of 349. Boundary demarcations for the new constituencies 
are still 
 
to be determined by the Interim Independent Boundaries Review 
Commission. 
 
However, the report of the PSC to the COE was ambiguous on the 
issue of 
 
constituency demarcation. While the PSC spoke of an additional 80 
 
constituencies, they also "recommended the retention of the 210 
 
constituencies, as delineated (for only the next election)...." 
 
 
 
¶6. (C) With regard to the 80 additional constituencies, the PSC 
allocated the 
 
seats among the provinces as follows: 9 for Nairobi, 5 for Coast; 5 
for 
 
Northeast; 13 for Eastern; 4 for Central; 27 for Rift Valley; 10 
for 
 
Western; and, 7 for Nyanza. The PSC also recommended that 
constituencies 
 
differ in population by no more than 30 percent, "save for sparsely 
 
populated areas and cities," which may deviate by no more than 40 
percent. 
 
The difference was created primarily to cater to those members from 
the 
 
sparsely populated north who have long argued for the size of a 
constituency 
 
as a determining factor in representation. (Note: Kenyan 
parliamentary 
 
NAIROBI 00000149  004 OF 006 
 
 
constituencies vary significantly in size and population: some 
 
constituencies are less than 300 square kilometers, while others 
are over 
 
30,000 square kilometers; one constituency has over 250,000 people, 
while 
 
another less than 11,000. End Note). 
 
 
 
¶7. (C) Other changes recommended by the PSC included elimination 
from the 
 
constitution of some of the social "rights" (i.e. vague assertions 
regarding 
 
the "right" to education, health care, etc.) that were in the first 
drafts. 
 
Also dropped were some of the long-standing "constitutional 
commissions," 
 
which of course has led to those affected arguing strenuously for 
their 
 
reinstatement. The PSC did not address the issue of the judiciary 
in any 
 
comprehensive way, but they did recommend the elimination of the 
 
Constitutional Court, with its duties to be assumed by a Supreme 
Court. 
 
Most notably, the PSC did not support the firing and rehiring after 
vetting 
 
of all judges as mooted by the COE. PSC Chair Mohammed Abdikadir 
told us 
 
that, while such a radical step might be attractive in terms of 
shaking up 
 
the judiciary, it would serve only to add to the already sizeable 
problem of 
 
case backlogs. 
 
 
 
Next Steps 
 
 
 
¶8. (C) The COE now has 21 days (from January 29 to February 18) to 
revise the 
 
draft and consider incorporation of the recommendations of the PSC 
into a 
 
revised draft and return that draft to the PSC, which then has 7 
days to 
 
table the draft in Parliament. The COE is not required to take on 
board all 
 
the recommendations of the PSC. However, PSC Chair Abdikadir told 
us he 
 
expects the COE to take most, if not all, the recommendations of 
the PSC, 
 
albeit with minor tinkering. Members of the COE have told us they 
largely 
 
viewed the PSC's input positively, but mostly they were pleased 
that the two 
 
major political factions representing the President and Prime 
Minister have 
 
negotiated and achieved a comprehensive compromise. In view of 
that, and 
 
NAIROBI 00000149  005 OF 006 
 
 
the desire to achieve overall approval by the Parliament, the COE 
indeed is 
 
likely to submit to the Parliament a document that represents 
closely the 
 
recommendations of the PSC. 
 
 
 
¶9. (C) We anticipate the COE is likely to reduce the number of 
constituencies 
 
proposed by the PSC. Not only was this out of scope of the PSC's 
mandate to 
 
discuss "contentious issues," but in the days since the PSC made 
the 
 
recommendation the focus of public comment has been against their 
expansion 
 
of Parliament. At 210 elected members -- each of whom earns 
approximately 
 
$17,000 a month in salary and allowances -- Parliament already 
consumes 
 
about 5 percent of the GOK's budget. Prime Minister Odinga has come 
out 
 
publicly against such a large increase in Parliament since the 
release of 
 
the PSC's recommendation. We also expect the COE to try and 
strengthen the 
 
PSC's vision for a Senate, giving it a more equal legislative role 
to that 
 
of Parliament, and increasing its checks and balance functions on 
the 
 
executive. 
 
 
 
¶10. (C) On February 3 President invoked his powers to convene 
Parliament, which 
 
otherwise was not going to return until mid-March, and directed 
that they 
 
return on February 23. Parliament is then expected both to debate 
the 
 
constitution, as well as extend the mandate of the COE. The COE was 
 
appointed on February 23, 2009 and sworn in on March 2, 2009 with a 
one-year 
 
mandate. Therefore, the COE will have to be extended in office in 
order for 
 
it to operate at least through the period necessary to finalize a 
 
constitution that will be put forth to the nation in a referendum. 
After the 
 
final draft is returned by the COE to the PSC on Feb. 18, the PSC 
must then 
 
table the draft before the full Parliament within one week. The 
Parliament 
 
then has 15 days to debate the draft (until March 12) and return it 
yet 
 
again to the COE, which has 7 days to make further revisions (thus 
by March 
 
19). The Parliament then has 21 days to finalize discussion on the 
draft 
 
(thus by April 9). The rest of the ambitious schedule states that 
 
NAIROBI 00000149  006 OF 006 
 
 
the 
 
government must then publish the draft constitution by May 9, and 
that a 
 
national referendum must by held no later than July 8. 
 
 
 
USG Assistance 
 
 
 
¶11. (C) Noting that Kenya has now opted for a "U.S. style 
presidential system," 
 
PSC Chair Abdikadir told us that Kenya is lacking experts who can 
advise on 
 
the details of a presidential-style constitution. COE Chairman 
Kitonga has 
 
expressed the same. Consequently, separately both Abdikadir and 
Kitonga 
 
have requested USG assistance with constitutional experts who can 
advise on 
 
details relating to a presidential system and a Senate. We are 
already 
 
providing expert legal assistance through the International 
Development Law 
 
Organization (IDLO), and we are working to identify immediately 
resources 
 
and personnel so that we can be responsive to the COE and PSC as 
they work 
 
to finalize a new draft constitution for Kenya. 
RANNEBERGER