Introduction
This Press statement is issued by Ufungamano Multi-Sectoral Forum Consisting f representatives from Religious Groups, Civil Society, Professionals and Business sectors, Trade Unions and Parliament. In the spirit of consensus building and guided by section 32 of the Constitution of Kenya review act, 2008, Ufungamano held several multi-sectoral, consultative public for a attended by representatives of the above groups. Based on the consultations, contributions and deliberations at those for a, Ufungamano made a submission to the Committee of Experts (CoE) on 16th December, 2009. Ufungamano has reviewed the raised Harmonized Constitution (RHDC) submitted to the Parliamentary Select Committee (PSC) on constitutional Review on 8th January 2010 and observes that the CoE did not accommodate most of our views and those of other stakeholders including the public. We state the following:
CHAPTER 3: NATIONAL VALUES AND CULTURE
The RHDC did not separate Values and Principles from goals which change from time to time.
The RHDC did not reduce the number of values enumerated in the draft to avoid contradiction.
The values should be limited to:
The rule of law.
Equal representation.
Equity of all citizens before the law.
Respect of human right and all fundamental freedoms.
National interrogation and cohesion.
Kenya is a secure state, a republic and shall b e governed by republican principles.
CHAPTER 8: REPRESENTATION OF THE PEOPLE
We agree with the new provision on allocation of party lists seats as detailed in Article 108. We propose the following:
The party lists seats be limited to a maximum of 40 seats.
Draft should adhere to the fundamental principle of equality of the vote.
All electoral units (constituencies) should be as nearly equal s possible.
Provided in the constitution definite criteria for delineation of constituencies including a 5 to 20% deviation between the lowest and the highly populated constituencies as proposed by Kriegler Commission.
Limit the number of constituencies to 210 to cut on costs.
CHAPTER 10: THE EXCECUTIVE
We do not agree with the hybrid system of the executive as proposed in the RDHC. We propose a pure presidential system of governance with one center of executive authority in support of the majority views of Kenyans. The experiment of two centers of executive authority has resulted in lack of accountability and extremely weak governance.
We propose the following in accordance with fundamental principles of a presidential system:
The president
He/She will both be the Head of state and Governance;
He/She be elected directly by the people with a threshold of 50% plus one and 25% in at least half of all the countries, vesting the national executive authority on the president;
He/She should not be an MP. To ensure that only serious candidates with national appeal for presidency, we propose that presidential candidates do not simultaneously vie for parliamentary elections.
He/She appoints the entire cabinet from outside parliament to ensure clear separation of powers between the Executive and Parliament. We do not agree with the provisions of the RHDC where only half of the cabinet is appointed from outside parliament.
Checking presidential powers
The president should exercise national executive power but checked as follows:
· An independent parliament that is not subservient to the Executive and is not part of the Executive;
· A strong and independent judiciary appointed through a publicly accepted vetting process;
· A viable impeachment procedure;
· Parliamentary approval on the appointments of ministers and constitutional office holders;
· Granting security of tenure to holders of key constitutional offices
The Vice president shall:
· Be the running mate and the principle assistant to the president;
· Success the president in case of death, incapacitation or impeachment;
· Be the speaker of the senate;
· Should not vie for a parliamentary seat
The cabinet:
· Composed of not more than 20 ministers as proposed in the harmonized draft
· Composed of the president, VP, Ministers and Deputy Ministers;
· Appointed by the president;
· Appointed from outside parliament;
· Appointments of ministers and Deputy Ministers to be subject to parliamentary approval;
· Ministers and Deputy Ministers are not MPSS.
The prime Minister
We do not support a parliamentary system because the political parties in Kenya are weak, unstable and constantly changing. It would therefore, be dangerous to anchor our national governance on shifting sand.
A parliamentary system would promote ethnic-based political parties and the country would face the risk if unstable governments as is the case in many other countries under parliamentary systems
We do not support the position of a prime minister, whether Executive or non executive because in the Kenyan context, it gives the perception of a parliamentary system and the two centers of power;
CHAPTER 11: JUDICIARY
Structure of the courts
The RHDC to include does not adequately address the issues we had raised and we reaffirm the following:
· The provision for a Constitutional Court should be struck out.
· Establish a High Court division to handle constitutional matters and Electoral Disputes
· Enhance jurisdiction of the Supreme Court to include Appellate jurisdiction for the constitution matters
· Retain the jurisdiction of the Supreme Court to determine disputes arising from the process of impeachment of the president.
· Transition. Delete the clause on retiring and vetting of judges. It is unfair to subject only the judges to the vetting process.
CHAPTER 12: DEVOLVED GOVERNMENT
We commend the CoE for incorporating some of the views of Ufungamano and the people on Devolution. However, the CoE did not take into account the following important proposals:
· The government and Deputy Governor should be elected directly by the people and not by the County Assembly in line with the fundamental principles of a presidential system;
· We propose that the title Governor be replaced with another title that has no colonial connotations e.g. County Chairman;
· The County Executive Committee should be appointed from outside the County Assembly but vetted by the County Assembly in order to have a clear separation of the executive from the Legislature;
· A Devolution Commission to be appointed by the president and approved by parliament to work out the respective rights and obligations of the devolved units;
· Most of the local Authorities established under the Local Government Act (Cap. 265) are not viable and do not deliver the required services to the people. The main justification for creating a smaller number of countries is to have viable units to take over from the existing and unviable local authorities. The provision under the 6th Schedule of Transitional and Consequential Provisions, Article 17 proposing retention of the existing unviable Local Authorities is contradictory and should be struck out.
CHAPTER 16:C0MMISSIONS AND INDEPENDENT OFFICES
We reaffirm our previous position and state that the number of commissions be limited to eight (8) permanent and one temporary commission as follows:
Permanent Commissions
i. Public Service Commission
ii. Parliamentary Service Commission
iii. Judicial Service Commission
iv. Electoral Commission
v. Commission on Human Rights and Administrative Justice
vi. Ethics and Integrity Commission
vii. Teachers Service Commission
viii. Police Service Commission
Temporary Commission
Devolution Commission
We note that the RHDC has provided for commissions whose functions dublicate the roles of key established ministries. These Commissions are costly to the tax payer and the service s they are intended to provide are already taken care of by the existing ministries such as the Ministry of Health ,Lands, Finance and Public Service Commission.
CONCLUSION
We trust that the PSC will take our proposals into account in the interests of the country.
Thank you and God bless Kenya.
Rev. Dr. Welly Mutiso
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