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.