Post by Ed on Nov 9, 2005 22:53:31 GMT 3
Kenyan Constitution Options, 2005
by Duncan Chaplin[1] (11/7/05 version)
On November 21st, 2005 Kenyans will participate in a historic referendum to help decide on a new constitution. They are being asked to vote yes or no on the Wako draft constitution (http://www.eastandard.net/New%20Constitution.pdf). Not surprisingly, there has been a great deal of discussion comparing the current constitution (http://www.lawafrica.com/constitution/index.asp) with the Wako draft and with an earlier draft which is generally referred to as Bomas (http://www.kenyaconstitution.org/html/draftconstitution.htm). The Kenyan community in the U.S. has followed these discussions with great interest and recently a small group in Washington, D.C.[2] helped me develop a short summary of the main issues in order to better inform these discussions and to ensure that more Kenyans have easy access to these key points.[3] This summary is presented as a table below which includes references to the sections in the three documents. In order to encourage more people to read this document I have endeavored to keep it as succinct as possible. However, there are a few points which may need some explanation.
1) Prime Minister Has Significant Powers: Many people believe that in order to win the 2002 elections Kibaki made a secret pact with Raila Odinga promising to give him the position of Prime Minister. This mattered because the Bomas draft of the constitution gave the prime minister significant powers which were cut back drastically in the Wako draft.
2) Past Human Rights Abuses will be Investigated: Former leaders may feel threatened by this clause as they have often been accused of human rights abuses.
3) Maximum Land Holdings in Arable Areas: Many Kenyans have very large farms, some of which were originally created by colonialists. Others have more wealth, but less property. Restrictions on the size of land holdings may be viewed as an unfair way of penalizing those who own land instead of other forms of property.
4) Year of Next Election: My reading of these documents suggests that the next presidential election will be in 2007 regardless of which constitution is chosen. Neither the Bomas or Wako draft explicitly states that the next election will be in 2007. However, both drafts say that the next parliamentary election will be 5 years from the last one and that the terms of the President and Vice President will end at that time.
5) Provincial Administration Employment: Current employees of the provincial administration are supposed to be assigned new government jobs if the new constitution is approved. Wako and Bomas shift the government from the provincial level towards the district level. Some people are concerned that there will not be sufficient funding to make these changes and that many provincial employees will lose their jobs when a new constitution is put into place. However, both Wako and Bomas say that the “Assistant Chiefs, Chiefs, District Officers, District Commissioners and Provincial Commissioners… shall report to the Public Service Commission for re-deployment."
6) Need > 50% of the votes to win presidency and need >25% in most area to win in 1st round: In the new constitution a candidate must win more than 50% of the votes case to become president. This restriction means that even a member of the largest tribe must get most of his/her votes from other tribes to win. The 25% rule encourages a candidate to also get some regional representation in order to win in the first round.
In the old constitution a candidate only had to get 25% of the votes in most (5 of the 8) provinces in order to win the presidency in the 1st round—in the new constitution they have to get this same fraction in most districts. Some people are concerned that the switch from most provinces to most districts may have made it easier for a Kikuyu candidate to win the presidency. In fact the opposite is true. It is far more difficult for a large tribe to win a presidential election on their own under Wako or Bomas than it is under the current constitution. This is because the Wako and Bomas drafts both require that the candidate win at least 50% of the overall votes in order to win the presidency. Since the largest tribe constitutes only 22% of the population this means that even a candidate of this tribe (the Kikuyus) must get most of his/her votes from other tribes.
If there is no winner in the first round then a second round is held with only two candidates. The winning candidate is the one with the most votes which means that in order to win in the second round a candidate must again get more than 50% of the votes. Thus, the winning candidate for the presidency must get more than 50% of the votes regardless of the round in which they win.
7) Minimum Age for President: The minimum age for someone to be President or a member of Parliament is 18 in the Bomas and Wako drafts. This is true because of three points in these drafts. First, the President must qualify as a member of Parliament. Second, members of Parliament must qualify as registered voters. Finally, registered voters must be 18. Thus, both the President and Parliament must be 18.
8) Number of Ministers President can appoint: All three documents place restrictions on the numbers of ministers the president can appoint.
If the president could appoint as many ministers as he or she wanted they would be able to control the parliament. Not surprisingly none of the three documents allows this. However, the Wako draft leaves this number up to the Parliament and the President can make this determination if Parliament does not choose to do so. The current constitution only allows the President to appoint 12 members of Parliament. In Bomas the president can only appoint 15 to 20 ministers and these ministers are nominated by the Prime Minister.
9) Teachers Unions are Restricted: None of the three drafts mentions teachers unions.
Some people are concerned that the new constitution (either Wako or Bomas) will restrict teacher’s unions by forcing them to organize at the district level rather than at the national level. I found no mention of teacher’s unions in any of the drafts.
If you have any questions about or suggestions for this document please feel free to contact Duncan Chaplin at Duncan_Chaplin2003@yahoo.com.
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[1] Many thanks to Jane Waithera, Pauline Muchina, and Mkawasi Mcharo for valuable comments. Any opinions, observations, findings, conclusions, and recommendations expressed in this report are those of the author and do not necessarily reflect the views of any of those who provided comments. Please direct any questions or correspondence to Duncan Chaplin at Duncan_Chaplin2003@yahoo.com.
[2] At least five other Kenyans and one non-Kenyan also provided input.
[3] None of us are experts in this area but we did spend a significant amount of time reviewing the relevant documents and other written materials.
by Duncan Chaplin[1] (11/7/05 version)
On November 21st, 2005 Kenyans will participate in a historic referendum to help decide on a new constitution. They are being asked to vote yes or no on the Wako draft constitution (http://www.eastandard.net/New%20Constitution.pdf). Not surprisingly, there has been a great deal of discussion comparing the current constitution (http://www.lawafrica.com/constitution/index.asp) with the Wako draft and with an earlier draft which is generally referred to as Bomas (http://www.kenyaconstitution.org/html/draftconstitution.htm). The Kenyan community in the U.S. has followed these discussions with great interest and recently a small group in Washington, D.C.[2] helped me develop a short summary of the main issues in order to better inform these discussions and to ensure that more Kenyans have easy access to these key points.[3] This summary is presented as a table below which includes references to the sections in the three documents. In order to encourage more people to read this document I have endeavored to keep it as succinct as possible. However, there are a few points which may need some explanation.
1) Prime Minister Has Significant Powers: Many people believe that in order to win the 2002 elections Kibaki made a secret pact with Raila Odinga promising to give him the position of Prime Minister. This mattered because the Bomas draft of the constitution gave the prime minister significant powers which were cut back drastically in the Wako draft.
2) Past Human Rights Abuses will be Investigated: Former leaders may feel threatened by this clause as they have often been accused of human rights abuses.
3) Maximum Land Holdings in Arable Areas: Many Kenyans have very large farms, some of which were originally created by colonialists. Others have more wealth, but less property. Restrictions on the size of land holdings may be viewed as an unfair way of penalizing those who own land instead of other forms of property.
4) Year of Next Election: My reading of these documents suggests that the next presidential election will be in 2007 regardless of which constitution is chosen. Neither the Bomas or Wako draft explicitly states that the next election will be in 2007. However, both drafts say that the next parliamentary election will be 5 years from the last one and that the terms of the President and Vice President will end at that time.
5) Provincial Administration Employment: Current employees of the provincial administration are supposed to be assigned new government jobs if the new constitution is approved. Wako and Bomas shift the government from the provincial level towards the district level. Some people are concerned that there will not be sufficient funding to make these changes and that many provincial employees will lose their jobs when a new constitution is put into place. However, both Wako and Bomas say that the “Assistant Chiefs, Chiefs, District Officers, District Commissioners and Provincial Commissioners… shall report to the Public Service Commission for re-deployment."
6) Need > 50% of the votes to win presidency and need >25% in most area to win in 1st round: In the new constitution a candidate must win more than 50% of the votes case to become president. This restriction means that even a member of the largest tribe must get most of his/her votes from other tribes to win. The 25% rule encourages a candidate to also get some regional representation in order to win in the first round.
In the old constitution a candidate only had to get 25% of the votes in most (5 of the 8) provinces in order to win the presidency in the 1st round—in the new constitution they have to get this same fraction in most districts. Some people are concerned that the switch from most provinces to most districts may have made it easier for a Kikuyu candidate to win the presidency. In fact the opposite is true. It is far more difficult for a large tribe to win a presidential election on their own under Wako or Bomas than it is under the current constitution. This is because the Wako and Bomas drafts both require that the candidate win at least 50% of the overall votes in order to win the presidency. Since the largest tribe constitutes only 22% of the population this means that even a candidate of this tribe (the Kikuyus) must get most of his/her votes from other tribes.
If there is no winner in the first round then a second round is held with only two candidates. The winning candidate is the one with the most votes which means that in order to win in the second round a candidate must again get more than 50% of the votes. Thus, the winning candidate for the presidency must get more than 50% of the votes regardless of the round in which they win.
7) Minimum Age for President: The minimum age for someone to be President or a member of Parliament is 18 in the Bomas and Wako drafts. This is true because of three points in these drafts. First, the President must qualify as a member of Parliament. Second, members of Parliament must qualify as registered voters. Finally, registered voters must be 18. Thus, both the President and Parliament must be 18.
8) Number of Ministers President can appoint: All three documents place restrictions on the numbers of ministers the president can appoint.
If the president could appoint as many ministers as he or she wanted they would be able to control the parliament. Not surprisingly none of the three documents allows this. However, the Wako draft leaves this number up to the Parliament and the President can make this determination if Parliament does not choose to do so. The current constitution only allows the President to appoint 12 members of Parliament. In Bomas the president can only appoint 15 to 20 ministers and these ministers are nominated by the Prime Minister.
9) Teachers Unions are Restricted: None of the three drafts mentions teachers unions.
Some people are concerned that the new constitution (either Wako or Bomas) will restrict teacher’s unions by forcing them to organize at the district level rather than at the national level. I found no mention of teacher’s unions in any of the drafts.
If you have any questions about or suggestions for this document please feel free to contact Duncan Chaplin at Duncan_Chaplin2003@yahoo.com.
----------------------------------------------------------
[1] Many thanks to Jane Waithera, Pauline Muchina, and Mkawasi Mcharo for valuable comments. Any opinions, observations, findings, conclusions, and recommendations expressed in this report are those of the author and do not necessarily reflect the views of any of those who provided comments. Please direct any questions or correspondence to Duncan Chaplin at Duncan_Chaplin2003@yahoo.com.
[2] At least five other Kenyans and one non-Kenyan also provided input.
[3] None of us are experts in this area but we did spend a significant amount of time reviewing the relevant documents and other written materials.