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UNCLAS SECTION 01 OF 03 NAIROBI 001698 
 
SIPDIS 
 
LONDON AND PARIS FOR AFRICA WATCHERS 
 
E.O. 12958: N/A 
TAGS: PREL PHUM PGOV KDEM KE
SUBJECT: GOK BILL OUTLINES ROADMAP TO NEW CONSTITUTION 
 
REF: A. NAIROBI 798 
     ¶B. 07 NAIROBI 4423 
 
------- 
 SUMMARY 
 ------- 
 
¶1.  The Ministry of Justice recently published the 
Constitution of Kenya Review Bill of 2008, outlining the 
process for writing and adopting a new constitution.  The new 
constitution could take as long as 24 months to enter into 
force, not the 12 months agreed at the  Kofi Annan-led 
mediation efforts in February..  The Bill calls for the 
formation of a mixed international-Kenyan Committee of 
Experts, which will isolate areas of contention in earlier 
draft constitutions -- most significantly, (1) the issue of 
Presidential versus Parliamentary system of government; and 
(2) the degree of decentralization of government powers.  The 
Committee will submit proposals to resolve these issues to an 
ad-hoc Parliamentary Select Committee (PSC).  The PSC will 
decide which of the Committee's recommendations to accept. 
On the basis of the PSC's recommendations, the Committee of 
Experts will prepare a new draft constitution that the entire 
Parliament will vote on.  If Parliament approves the new 
draft by a 65 per cent margin, it will be put to a 
referendum, administered by the Electoral Commission of Kenya 
(ECK). Civil society groups have voiced concerns that the 
Bill gives potentially expansive roles to the Ministers of 
Justice and Finance, threatening to politicize the process. 
 
¶2.  All sides agree that a new Constitution is essential to 
preventing future conflicts like that which engulfed Kenya in 
the wake of the December 2007 elections.  However, the road 
to a new constitution threatens to create friction within the 
Grand Coalition government; there is no consensus on the two 
main contentious issues.  The selection of members of the 
Committee of Experts will certainly be key in resolving the 
constitutional impasse, but ultimately adoption of a new 
constitution will demand leadership by key political actors. 
End Summary. 
 
------------------------- 
From Bomas through Kilifi 
to a New Constitution 
------------------------- 
 
¶3.  The Ministry of Justice on June 20 submitted the 
Constitution of Kenya Review Bill of 2008 (the Bill) into 
parliamentary procedure.  The Bill outlines the process for 
writing and adopting a new constitution as agreed at the Kofi 
Annan-led mediation talks in February. The Bill accepts the 
Bomas and Kilifi (aka Wako) draft constitutions as the basis 
for a new draft constitution.  (Note: The Bomas Draft was a 
product of a inclusive consultative process undertaken in 
2003 and 2004 involving Members of Parliament, 
representatives of local governments, and civil society.  It 
proposed establishing a parliamentary system, with most 
executive power placed in a Prime Minister, and President 
reduced to Head of State. It also proposed for a broad 
decentralization of government powers.  Dissatisfied with 
this outcome, President Kibaki tasked Attorney General Amos 
Wako to reformulate the draft before it was put to a 
referendum.  The result is the Kilifi Draft (aka Wako Draft), 
which proposed a Presidency with expanded powers and a highly 
centralized state.  It was the Kilifi draft that was put to a 
referendum in 2005 - and summarily rejected.  The divisions 
bared by this process gave birth to the two main blocs in 
Kenyan politics today:  the Orange Democratic Movement (ODM) 
is the result of the "NO" camp in the 2005 referendum, while 
Party of National Unity (PNU) consists mostly of the "YES" 
camp. End Note.) 
 
---------------------------- 
The Constitutional Four-Step 
---------------------------- 
 
¶4.  The Bill envisions a four-step process to adopting a new 
constitution.  The first step is the formation of a mixed 
Committee of Experts (the Committee), which will have seven 
members; three non-Kenyans nominated by the African 
Union-sponsored Panel of Eminent African Personalities and 
 
NAIROBI 00001698  002 OF 003 
 
 
four Kenyans who will be nominated by an ad-hoc Parliamentary 
Select Commission based on a public application process.  All 
Committee members will be appointed by the President, with 
the nominations being passed through the Minister of Justice. 
 The Bill disqualifies members of the Constitution of Kenya 
Review Commission, which produced the Bomas Draft, from 
membership on the Committee of Experts.  The Committee will 
isolate contentious issues between the two Bomas and Kilifi 
drafts, and propose options for resolution of these issues -- 
most significantly, (1) the issue of Presidential versus 
Parliamentary system of government; and (2) the degree of 
decentralization of government powers, taking into account 
public input, expert opinion, and its own research.. The Bill 
gives the Committee of Experts 12 months to complete its 
work. 
 
¶5.  The Committee will incorporate its proposals for 
resolving contentious issues into a draft constitution that 
an ad-hoc Parliamentary Select Committee (PSC) will consider. 
 If the PSC reaches consensus on the contentious issues, the 
Committee will re-draft a constitution based on the PSC's 
consensus.  The new draft will be debated by the entire 
Parliament.  After parliament debates the draft constitution, 
a "yes" vote of 65 per cent or more will signify approval of 
the draft. 
 
¶6.  If approved by the Parliament, the draft will be put to a 
national referendum, administered by the ECK.  The ECK, in 
consultation with the PSC, will frame the question to be 
submitted to the voters, which should be framed to require a 
"yes" or "no" answer. Along with the Constitution of Kenya 
Review Bill, the government has also submitted a proposed 
constitutional amendment to regulate the referendum.  The 
amendment defines three requirements for ratification of a 
new constitution:  1) at least 50 per cent voter turnout; 2) 
at least 65 per cent of valid votes are "yes" votes; and 3) 
at least 65 per cent of all districts report at least 25 % 
"yes" votes.  The Bill provides for election petitions to be 
filed contesting the validity of the result of the 
referendum.  If the draft is ratified at the referendum and 
after all election petitions are exhausted, the President 
must promulgate and publish the text in Official Gazette 
within 14 days.  Fourteen days after publication, the new 
Constitution enters into force. 
 
¶7.  At the Kofi Annan-led mediation, the parties agreed to 
complete a new constitution in 12 months.  President Kibaki 
and Prime Minister Odinga continue to tell interlocutors (as 
recently as July 3 meetings with CODEL Price, septel), that 
the new constitution will be passed within 12 months. 
However, this timeline is probably unrealistic and, under the 
timelines in the Bill, a new Constitution is unlikely to be 
finalized in less than 18 months.  Vice President Kalonzo 
Musyoka was quoted in local media as stating that 24 months 
will be necessary to adopt a new constitution. 
 
----------------------- 
Political Ramifications 
of the Process 
----------------------- 
 
¶8. All sides agree that a new Constitution is essential to 
preventing future conflicts like that which engulfed Kenya in 
the wake of the December 2007 elections.  However, the road 
to a new constitution threatens to create friction within the 
Grand Coalition government; there is no consensus on the two 
main contentious issues.  Of the two, common ground is more 
likely to be found on the structure of government, with a 
hybrid Presidential - Parliamentary system likely to emerge 
with the support of key players who harbor presidential 
ambitions in 2012, including Odinga himself.  Although he 
made the establishment of an Executive Prime Minister a key 
point in his election campaign, Odinga has his eyes set on 
being elected President in 2012 and may ease up on the push 
to remove all the President's executive powers.  Odinga's 
supporters are eager to see him elevated to the presidency, 
which may give him some flexibility on the issue. 
 
¶9. On the other main issue, the optimal degree of 
decentralization of government, opinions remain polarized. 
The ODM has little wiggle room; its campaign platform to 
 
NAIROBI 00001698  003 OF 003 
 
 
decentralize government (ref b) was key to Odinga's success 
in bringing long-neglected regions (such as Rift Valley 
Province, Coast Province, and North-Eastern Province into the 
ODM fold.  On the other hand, the PNU campaigned on a 
anti-decentralization platform and has not modified its 
stance.  The selection of members of the Committee of Experts 
will certainly be key in resolving the constitutional 
impasse, but ultimately adoption of a new constitution will 
demand leadership by key political actors. 
 
------------------------ 
Civil Society Objections 
------------------------ 
 
¶10. Civil society groups worry that the Bill potentially 
allows the Ministers of Justice and Finance to politicize the 
process through their ability to oversee the selection of 
Committee of Expert members and through the power of the 
purse that is granted to the Minister of Finance.  The 
Supreme Council of Kenyan Muslims, mindful of the Attorney 
General's (AG) hijacking of the Bomas draft in 2004, has 
voiced concerns about the AG's power to revise the draft 
constitution before it is put to a referendum.  However, the 
Bill limits the AG's ability to make alterations without the 
consent of the PSC.  Civil society also objects to the 
exclusion from the Committee of Kenyans who participated in 
the Constitution of Kenya Review Commission.  Many of Kenya's 
best constitutional minds participated in this process and 
will be sidelined if this provision remains in the law. 
Civil society objections to ECK administering the referendum 
are likely to be overcome by events -- the reforms to be 
proposed by the Independent Review Commission in September 
will likely have been adopted and implemented by the time a 
new draft constitution is put to a referendum. 
 
------- 
COMMENT 
------- 
 
¶11. Civil society objections about the roles given to the 
Ministers of Justice and Finance have some basis.  The 
legislation requires the PSC to identify, in rank order, the 
top six Kenyan candidates to serve on the Committee of 
Experts, while the Minister of Justice should deliver the top 
four to the President for nomination. However, there are 
worries that the Minister might find a pretext to eliminate a 
candidate on political grounds.  Probably more serious is the 
discretion given to the Minister of Finance to determine the 
salaries and budget for the Committee of Experts.  Civil 
society groups fear this could be used to influence the work 
of the Committee.  We will track this process closely and 
weigh in as needed.  End Comment. 
RANNEBERGER