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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 
 
--------------------------- 
 
NAIROBI 00002514  003 OF 005 
 
 
¶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