Yesterday, Kenya held the much anticipated referendum on its draft constitution. As expected the ‘yes’ vote has won with about 67% voting in favour and with majorities in most provinces. There does not seem to have been any violence during the vote and the counting seems to have taken place smoothly. Turnout was high.
Given the new constitution is not semi-presidential. I will no longer post about Kenya unless semi-presidentialism comes under consideration again.
On 4 August Kenya is holding a referendum on the draft constitution. (See previous post). The campaign has been marked by violence. In June six people were killed in a bomb blast at a rally to discuss the new constitution. It is unclear who perpetrated the attack.
Anyway, the polls seems to suggest that the ‘yes’ vote will easily carry the day. The Daily Nation is reporting that ‘yes’ vote has the support of around 60 per cent with 20 per cent for the ‘no’ side.
For the constitution to be passed, it needs 50% of the vote and at least 25% of the vote in at least five of the eight provinces.
All told, it looks as if Kenya will cease to be semi-presidential in a short while.
The constitution-making process in Kenya has moved one step closer to its conclusion. At the end of last week, the Kenyan parliament approved the draft constitution that had been presented to it at the end of January. As reported in a previous post, this constitution proposed a straightforward presidential regime.
The key element to note about the parliamentary debate is that absolutely no amendments were passed to the draft constitution that was being debated. This is because a two-thirds majority was required for amendments, though the bill only had to be adopted by a simple majority. So, the proposed presidential regime remains intact.
The text of the draft constitution is available here. There is also a very instructive document, available here, which shows, in track changes, the differences between the draft constitution that was recommended by the Committee of Experts (a semi-presidential constitution), and the constitution that was subsequently agreed by the Parliamentary Select Committee. If I had been on the Committee of Experts, I might have finished by wondering why I had ever bothered to agree to be part of the process, so extensive were the changes made (albeit quite legitimately) by the Parliamentary Select Committee.
The final stage of the process is a referendum. There is talk that the vote will be held on 2 July. At that point, assuming the constitution is passed and there is no reason to think that it will not be, Kenya’s brief flirtation with semi-presidentalism will have ended.
Given the post-election violence in Kenya in January 2008, it is perhaps remarkable that the ‘grand coalition’ bringing together President Kibaki and PM Odinga has operated for so long without too much obvious trouble. However, that may be about to change.
On Sunday, PM Odinga suspended two ministers – William Ruto of Agriculture and Sam Ongeri of Education – from the cabinet for three months because of corruption allegations against them. However, President Kibaki has refused to accept the prime minister’s decision. The Standard of Nairobi reports President Kibaki as saying that neither the Constitution nor the National Accord and Reconciliation Act gave PM Odinga the power to suspend the ministers and that there had been no consultation on the matter.
It might be noted that Ruto is from Odinga’s ODM party, while Ongeri is from Presdent Kibaki’s party. So, this does seem to be a dispute about how much power the PM has, rather than a purely party political affair.
The Daily Nation has plenty of detail about the matter.
As reported in a previous post, in Kenya the Committee of Experts on the Constitutional Review presented a Revised Harmonized Draft Constitution to the Parliamentary Select Committee (PSC) at the beginning of January. The 26-member PSC then went on an 11-day retreat in the town of Naivasha in the Rift Valley to consider the proposals.
The PSC has now finished its deliberations and has handed back a revised document to the Committee of Experts. This Committee will now consider the proposals and will then produce a final draft that will be presented to parliament. According to a report in the Sunday Nation, the Committee of Experts can amend the PSC document, except in relation to four contentious areas, one of which is the structure of the executive. If so, then it appears that whether or not Kenya remains semi-presidential was in the hands of the PSC in Naivasha.
Well, reports suggest that the PSC has agreed unanimously to adopt a presidential system. I have been unable to obtain a copy of the PSC document, but the Sunday Nation is reporting that the post of prime minister is being scrapped in the new constitution. The reports suggest that the PSC has tried to ensure that the parliament and the judiciary will act as a check on the president, thus avoiding any claims of an ‘imperial presidency’. In addition, they have recommend that elections not be held concurrently and that legislative elections precede presidential elections by a number of months. However, all versions of semi-presidentialism have been rejected.
If I can find documentation, then I will update the post.
In Kenya the process of drafting a new constitution is becoming complicated. As reported in a previous post, in November the Committee of Experts on the Constitutional Review launched a so-called Harmonized Draft Constitution. There was then a period of public consultation.
On 7 January the Committee of Experts presented a Revised Harmonized Draft Constitution to the Parliamentary Select Committee. The text of this new document is available here. This version is unequivocally semi-presidential. There is a directly elected president. and there is a prime minister who has to be approved by the National Assembly. The Assembly can table a motion of no-confidence in the prime minister, which, if successful, entails the dismissal of the PM and the Cabinet. The president cannot dismiss the PM unilaterally. So, this would be a premier-presidential version of semi-presidentialism.
The Revised Harmonized Draft has caused some comment and some of it very unfavourable. The Revised Draft is being called a ‘hybrid constitution’ because it, in effect, shares power between the president and the PM. The following is taken from a report in the Daily Nation: “it was unclear … whether the experts had come up with mechanisms to guard against conflict between the two offices. The proposed system has received criticism in and outside political circles with most arguing that it would be a recipe for chaos and confusion”. I have to agree.
The situation now is that the Parliamentary Select Committee on the Constitution has 30 days to come up with an agreed version that will be tabled before the legislature and, presumably, passed there. There will then be a referendum. In a separate report, the Select Committee has apparently agreed that only one document will be voted on at the referendum. This means that there has to be parliamentary agreement on the form of government (and other matters too!).
Agreement may be difficult. The president’s party (or coalition), the Party of National Unity (PNU), not surprisingly favours a Botswana-style presidential system with no PM. By contrast, the prime minister’s party, the Orange Democratic Movement, supports a parliamentary system. The latter is envisaged either as a UK-style parliamentary system or a semi-presidential system with a directly elected but weak president. The PNU is reported as saying that it will “will only accept the introduction of the position of Prime Minister if the country adopts the Tanzanian model of government. In Tanzania, the President is the Head of State and Government and appoints a Prime Minister, who is Leader of Government in Parliament”. In Tanzania the PM and cabinet can be dismissed by the legislature, but the PM is weak and the president is powerful.
The Parliamentary Select Committee has begum its discussions on this very issue. I will post again when agreement, if any, has been reached.
After a long process of drafting by a Committee of Experts, the proposed new Constitution for Kenya has been unveiled. There is a now a one-month period for debate and then the Committee has 21 days to incorporate any amendments. More details here.
From a semi-presidential perspective the draft is very interesting. One of the questions that the Committee was expressly asked to consider was whether there should be a presidential, parliamentary, or ‘mixed’ system. (Official documentation here). Well, it seems as if the committee has firmly opted for a semi-presidential system.
The draft of the new constitution is available here. Here are the salient details:
Art 162-1 “The election of the State President shall be by direct adult suffrage through a secret ballot”.
Art. 179-1 “There shall be a Prime Minister of the Republic, who shall be the Head of Government.”
Art. 179-2 “The Prime Minister shall direct and co-ordinate the work of the ministries and the preparation of legislation, and is responsible to Parliament.”
Art. 180-1 “Within seven days following the summoning of the National Assembly after a general election, or whenever necessary to fill a vacancy in the office of Prime Minister, other than on the occasion of a vote of no confidence, the State President shall appoint as Prime Minister—
(a) the member of the National Assembly who is the leader of the largest political party or coalition of parties, represented in the National Assembly; or
(b) if the leader of the largest party or coalition of parties has been unable to command the confidence of the National Assembly, the member of the National Assembly who is the leader of the second largest political party or coalition of parties represented in the National Assembly.”
Art 180-5 “Within seven days of the Speaker receiving a proposal from the State President, the Speaker shall call a vote in the National Assembly to confirm the appointment of the person proposed by the State President.”
Art 186-1 “A member of the National Assembly supported by at least a third of all the members may, at any time during a sitting of the National Assembly, propose a motion of no confidence in the Prime Minister.”
Art. 186-2 “If the National Assembly, by a resolution supported by the votes of more than half of all the members, passes a motion of no confidence in the Prime Minister, the Prime Minister shall submit to the Speaker of the National Assembly notice of the Prime Minister’s resignation and that of the Deputy Prime Minister, the Cabinet Ministers and the Deputy Ministers.”
Art. 186-4 “The State President shall not dismiss the Prime Minister, the Deputy Prime Minister, a Cabinet Minister and a Deputy Minister in any circumstances, other than those contemplated in this Article and Article 185.”
So, the draft constitution is clearly semi-presidential. Moreover, the last clause cited shows that it is clearly premier-presidential.
Kenya has joined the list of countries with semi-presidential constitutions. So, with apologies to Turkey, Kenya is now the newest semi-presidential country.
On 18 March the Kenyan parliament met and passed two bills – The Constitution of Kenya (Amendment) Bill, 2008, and the National Accord And Reconciliation Bill. Both Bills were passed at the second stage, the committee stage, and the third stage on the same day and in the same sitting of parliament. The Bills were passed unanimously. The president signed them into law on Thursday 20 March.
The texts of the debates are available on-line here and they make very interesting reading, not just from a parochial semi-presidential point of view but also as an insight into Kenyan politics and the peace deal.
However, the new coalition government under prime minister-designate Raila Odinga has yet to be formed. Mr Odinga met President Kibaki today, but the Kenyan Daily Nation reports that when the meeting concluded the two parties were not yet ready to name the members of the new government.
The East Africa Standard reports the findings of a poll that says 90 per cent of people think that the peace deal will last.
Allafrica quotes a report in the Kenyan Daily Nation newspaper indicating that the country’s power-sharing agreement will be debated in parliament tomorrow.
Apparently, the National Accord and Reconciliation Bill and the Constitution of Kenya (Amendment) Bill have been placed on the parliamentary agenda for Tuesday 18 March. The newspaper report suggests that the Bills will be passed by the end of the week.
The East Africa Standard, assuming that the bills are passed, is reporting that the prime minister will appear before parliament each week in a UK-style parliamentary question time procedure.
The Mzalendo website that specialises in information about the Kenyan parliament and elections has posted the text of the National Accord and Reconciliation Act. There is no information yet at the official site of the Kenyan parliament, or Bunge.
Assuming the Mzalendo information is accurate and that the bill is not amended during the passage through parliament, then Kenya will indeed become semi-presidential.
Article 4 (b) of the Act states that the office of the Prime Minister and Deputy Prime Minister shall become vacant if “the National Assembly passes a resolution which is supported by a majority of all members of the National Assembly … declaring that the National Assembly has no confidence in the Prime Minister or Deputy Prime Minister …”. This wording stops slightly short of saying that the government is collectively responsible to parliament, but it also indicates more than just individual ministerial responsibility.
There is no indication that the president can dismiss the PM, so the reforms, if passed, would establish a premier-presidential variant of semi-presidentialism in Kenya.
In an East African context, there are now three candidates for semi-presidentialism. In addition to Kenya, there is also Uganda and Tanzania. There has already been one post on Uganda in this blog. To recap, here the appointment of the PM must be approved by parliament, but there is no provision for parliament to censure either the PM individually or government collectively. So, Uganda is on the cusp of semi-presidentialism. In Tanzania, the situation is somewhat confusing. Article 53 states that the government is collectively responsible to the National Assembly. However, Article 54, which deals with votes of no-confidence, only refers to the Prime Minister individually. In both Uganda and Tanzania, the president can dismiss the PM, so both would be president-parliamentary versions of semi-presidentialism.
Having said that, if East Africa is defined so as to include countries such as Madagascar, Mozambique and Rwanda, then there are currently three other semi-presidential countries in the region as well. Moreover, the Comoros was semi-presidential for two periods during the 1980s and 1990s, as was briefly Burundi in the mid-1990s.