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Cablegate: Gok Bill Outlines Roadmap to New Constitution

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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

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