CONSTITUTION OF KENYA REVIEW COMMISSION
(CKRC)
NATIONAL CONSTITUTIONAL CONFERENCE
Verbatim Report of
PLENARY PROCEEDINGS, PRESENTATION OF DRAFT BILL, CHAPTER 8 – THE EXECUTIVE, HELD AT THE BOMAS OF KENYA
ON
15TH MAY 2003
VERBATIM REPORT OF PLENARY PROCEEDINGS, PRESENTATION OF DRAFT BILL, CHAPTER 8 – THE EXECUTIVE, HELD AT THE OF BOMAS KENYA ON 15th MAY 2003
PRESENTATION OF DRAFT BILL: CHAPTER 8 – THE EXECUTIVE
Presenters: -Com. Dr. Andronico Adede
Com. Dr. Charles Maranga
Session Chair: Prof. Yash Pal Ghai
Co-chair: Samuel K. Arap Nge’ny
Co-chair:Wilfred Koitamet Ole Kina Nchoshoi
The meeting started at 10.00 a.m.
Prof. Yash Pal Ghai: I would like to start the meeting and I will ask Mrs. Kamla Siband to say the prayers today and I will ask you all to stand up please for the prayers.
Hon. Delegate Mrs. Kamla Siband: Good morning everybody.
Prayers
Dear God, we thank you for bringing us all together today. We pray to you, guide us and be with us as we deliberate various issues today. God, we ask you to give us all the humility and the tolerance to understand each other and to make us realize that we should have the tolerance to listen to everybody. God, give us the courage and the wisdom to understand that this Constitution is being made for 30 Million Kenyans for generations to come. Let us get beyond the issues of self-centeredness. God we pray to you again, guide us and take care of us. Thank you.
Prof. Yash Pal Ghai: Thank you. Are there any delegates who have not taken the Oath? If so, would they please come here in the usual way and I will administer the Oath. Mr. Konchellah you have the Oath in your hands. So, will you please read the Oath and then sign the Oath and I will come to sign it. Thank you very much. Please sign the Oath and leave it with the staff. Thank you, you are welcome to the Conference and we look forward to your contribution.
Honorable delegates, I would like to make a short statement before I turn the Chair to our two Co-chairs today -- the Vice Chair, Ole Kina and the Hon. S. Arap Nge’ny who will chair the discussion on the Executive. I would just like to say that I am a little disturbed as is the Steering Committee at what seems to be considerable tension between different categories of members. I was unfortunately not able to spend much time in the Plenary yesterday because I had a series of committee meetings. But I gather that there was sharp exchange words and I would like to plead with all the delegates to be polite to each other and not to impute personal motives when a statement is made by a delegate. We are all committed to the same cause which is to produce the best Constitution we can for our country.
In doing so, we have to balance many different interests, geographical and other interests and it is extremely important that we all work to achieve this balance in a way that serves the national good. I expect of course in a Conference like this, that there are different points to be canvassed and lobbied for but I think we also have to remember that in this Chamber we are delegates and we should not take positions as members of a particular group. In particular we should listen to all the delegates in silence and with respect and I hope that the animosities that are seeming to be emerging can be replaced by amicable relations between us, because one of the functions that we have here is to set an example to very diverse nations of how to work together and how to respect each other. So please, I would urge you all to be restrained in the language you use and let us all work together in the spirit of common pursuit.
I have also been asked by some delegates to explain the point which I believe a Member of Parliament made yesterday which was the fact that, when the Draft goes to Parliament, Parliament may reject it if their wishes are not met. I don’t want to comment on the debate but I have been asked to clarify what the position is after this Conference has adopted the Constitution. The Review Act says that once the Draft has been adopted by this Conference and assuming that there are no issues, which need to be referred to a referendum, then that Bill will be transmitted to Parliament through the Attorney General. The Draft that will go to Parliament is the one that you will have approved here and the role of Parliament then is to give legal effect to that document. The Review Act says that Parliament must within one week of receiving the document proceed with the enactment of the document. Section 47 of the Constitution itself says, ‘that when Constitutional Bill is presented to the National Assembly, the National Assembly has a choice of either rejecting it or adopting it. National Assembly cannot amend their Bill and (Clapping from the Honourable Delegates) I am sure that it was the assumption of Parliament, when Parliament enacted the Review Act, that the function of Parliament will be a formal one; that the real decisions will be made in this Chambers. All Members of Parliament are members of this Conference and as you know have taken an active part in our discussions and I assume that when the Draft goes to Parliament, they will speedily approve that document because they will have participated in its deliberations over it as well as the approval of it. They require as you know the votes of 2/3 of the members to adopt the Draft Constitution, that means a very high degree of consensus and it is politically assumed Parliament would honour that commitment to their decision.
I do remember one Member of Parliament saying in this Chambers that if Parliamentarians were to reject the Bill passed by this House, they will be committing political suicide. That may be a thematic way to put it but the legal position is that once the Draft is approved by this Conference, it will be taken to Parliament for formal enactment and Parliament cannot at that stage amend the Bill that goes to it.
The final point I want to make is about the time management of the Conference. The Steering Committee has on several occasions discussed the question of speed: are we rushing delegates or are we being too slow. We have as you know until the 6th of June for at least this round of meetings and it now looks somewhat unlikely that we shall be able to conclude all our business. The expectation and the hope of the Steering Committee is that we can at least go into Committee sessions before we adjourned for August. We think that about five days should be allowed for committee work. So we must try to conclude the general debate at least by the 28th or so of May. I think that gives us ample time to examine and debate the remaining Chapters of the report and of the Draft Constitution.
Our instructions to the Co-chairs is, not to rush you but not to allow too much repetition as the regulations, Regulation 40 actually gives the Chair the authority to stop a speaker whose words are tedious and repetitive. So be interesting and not tedious and be original and not repetitive. We have to strike a balance between giving a delegate sufficient time because this is an extremely important forum, the Plenary, and it will provide guidance to the technical committees when they begin the detailed work. But I would like to make one plea and this is, if the delegates would confine themselves to points of principle. When we adopted the rules of procedure, we had assumed that the debate at this stage of the process in the plenary would be focusing on essential principles and not into matters of detail. So if you feel that a particular Article needs to be amended in a particular way, like changing the words, the grammar, the commas and so on, please keep that point for the committee work. That is what committees are for.
So, confine yourself to general principles and try to be as brief as you can. In this way, I think we can give most delegates an opportunity and we can ensure that all points of view have been articulated in this Chambers. So, I will plead with you to do so and to give your fullest cooperation to the Co-chairs. I can assure you that chairing and co-chairing these sessions are quite difficult with an audience of this size and everybody very well prepared and very keen to make the contribution, which is why you are here. But I think great cooperation with these Co-chairs will facilitate our work and enable more contribution to be made. With that I wish you a good discussion and I hope to be able to spend a fair bit of time today with you. I now invite my Honorable Vice-chair, Ole Kina, to commence the discussion of the Chapter on the Executive.
(Clapping from the Honourable Delegates).
Hon. Delegate Ole Kina: Thank you very much Mr. Chairman. I would like first of all to thank the entire Conference or the delegates for the co-operation that they gave us yesterday and to say that we are looking forward for the same kind of co-operation today because it will enable us to have more of our delegates contribute. I will also want to remind Honourable Delegates, rule 39 (g), which requires that no delegate may leave his or her mobile on within the Conference. We can see that there are so many of them who are responding even to calls and speaking as the deliberations are going on and I don’t think that is fair. On that note, there is a mobile phone that was lost yesterday by a delegate sitting on one of these sides. So, later on you can come along and pick it. Without further ado, I would like to invite…yes, point of order.
Hon. Delegate Ezekiel Kesendany: Thank you Mr. Chairman. My name is Ezekiel Kesendany, a delegate from Nakuru and more so a delegate representing the Ogiek community. Mr. Chairman, I have been following the proceedings of this House with a lot of concern. I strongly appreciate various constituencies represented here. For example when we talk about political parties, we have 46 representatives. The same thing with the women, people with disabilities and all others. Mr. Chairman, there is a very important constituency called the minorities and that is where I belong. This Conference has deliberately refused to identify these people in the House. I have been raising my hand for the three weeks we have been here. I fall in the category of district delegates and I have been raising my hand throughout and I have not been able to get a chance, Mr. Chairman. I am requesting that, I either be given a chair in the middle of this hall…
Interjection
Hon. Delegate Wilfred Koitamet Ole Kina: Honourable delegate, that is not a point of order.
Hon. Delegate Ezekiel Kesendany: …or you give me a red card so that I can be visible.
Hon. Delegate Wilfred Koitamet Ole Kina: May I assure you that the Chair is not deliberately alienating anybody from the proceedings and if you belong to a category, you will have a chance like everybody else. When we talk of minorities here, we have a lot of them, so let us please give us each other space to be able to go on with the deliberations. So let me ask Honourable Noah Ngeny’ to invite the presenters of today. Thank you.
Hon. Delegate Samuel K. Arap Nge’ny: Thank you my Co-chair. Before I invite the presenters for this very important section of our Conference, I just want to say, I thank the Steering Committee for accepting my name to Co-chair this very important session on the Executive. Secondly is just to introduce the presenters to the Conference and to say on my part that this is the second Arm of Government --- and a very important one that deals with the execution of all the legislations and other activities of Government, including orders from courts and other sections. Therefore, this is a very important Arm of our Government in this Draft Constitution that will require that we follow this very carefully.
Therefore, I would like to reiterate what my Co-chair has mentioned about the mobile phones because yesterday we had a lot of interruptions and I think it is only fair that when you as delegates are listening, we should not be unnecessarily interrupted. So, let us find other ways of how the mobiles can be used so that delegates are not unduly interrupted. I will now invite the presenter, Com. Dr. Andronico Adede, to start it off.
Com. Dr. Andronico Adede: Thank you Mr. Chairman, and thank you indeed for having characterized the work we are continuing to do this morning dealing with the Executive, the second organ of the Government, having concluded our discussions on the Legislature yesterday. It will soon begin to get together, distinguished delegates, when you think that yesterday and the day before as we were discussing the Legislature, we already saw the need to distribute and disperse powers in various directions. We saw already when we were talking about the Legislature yesterday, the power of the Parliament to make appointments, which is linked to the power of the Executive Arm, which we are taking up today. That distribution was also horizontal in the way I have explained: linking the powers of the Parliament with those of the Executive.
It was also vertical because this is where there was an attempt to discuss how that power is going to be distributed vertically from the central Government to the local level, and where the question of the 2nd Chamber became very important, being the link between the National Government in the Upper Chamber passing legislations that are indeed going to be managed, enforced and implemented locally and where the same members are also the leaders. So this question of distribution of power is very important in the structure of Government as we begin to discuss the area of Executive. I would like to go back to my thesis the last time, that this is where Constitution works; where we constitute, we define and in a way we make limitations as to which functions we are going to assign to which part of the Government and how are we going to cooperate in performing their functions in a way that introduces the system of checks and balances.
The Executive is now on the table and it is not a waste of time to just remind ourselves about what you people said about this question. As you see, the Act mandated the Commission to examine the various systems of Government all over the world and to make recommendations beyond the views that were expressed by the people.
Let me remind you to begin with that, on this very subject, the people said a lot of things but I am going to pick just a few that are going to pick just a central in the way the Commission develop the Chapter which we will be discussing with you this morning. Remember that you said that, the Commission should adopt a Parliamentary system of Government with the Prime Minister as the head of Government and a largely ceremonial President as a head of State. That’s what you said. The President would play the role of an elder statesman serving as a symbol of national unity and identity. You also said that the power of the President should be curtailed. Kenyans felt that the President should not have the exclusive power to appoint senior Government officers. Indeed, it was suggested for many of the appointments to be vetted by the Parliament. That, you already saw a glimpse of when we were talking in the Legislature, Article 103 gave you the list of appointments which the Parliament would have to approve when appointments are made by the President. (c), you said that the power of the President and the Prime Minister need to be elaborated in the Constitution itself. Again you said the President should be elected directly and suggested how. Again, you said the Vice President should be elected directly by the people as a President’s running mate. Then you said both the President and Vice President should not be Members of Parliament.
Lastly, you recommended Ministers should be appropriately qualified to match their ministerial responsibilities. The views went on to both ways, whether the members of the Government should be part of or outside the Parliament. Those are the few ones, which I wanted to state first to start us on the question of the Executive. As you know the Commission was doing its work on the basis of the views expressed and had the daunting task to try to translate some of these views in the language that would come into the Constitution.
After collecting the views and relying on the provision of the Act that requires it to do a study to inform itself as to how it is going to go about making the Draft Constitution, the Commission did in fact make a study and it found that there are indeed two types of Executive systems in the world. There is the so-called purely Presidential Executive and purely Parliamentary Executive. In the former, the purely Presidential Executive, all the power of the Executive is invested upon the President who is not a member of the Legislature and is directly elected. He has a fixed term which cannot be altered by the Legislature except through procedures such as impeachment. He works by a Cabinet chosen by him from individuals fully qualified and from outside the Parliament. So both the President and his Cabinet are from outside the Parliament, they are not members of the Legislature. The purely Parliamentary Executive means that all the members of the Government are also members of Parliament. Legislature; it is headed by a person who enjoys the confidence of the Parliament. The distribution of the power; the Cabinet performs the Executive’s functions collectively and they are subject to the Parliament.