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ICPC position paper on constitution review

Posted by My Story on December 2, 2009

BY NDUNG’U WAINAINA

Introduction
Why a new democratic constitutional order?

The aim of a democratic constitutional state is to maintain a social order in which the individual liberty of the citizen is the major concern. Consequently, a democratic constitutional state should guarantee both a high level of individual freedom and an order in which such freedom is made possible and guaranteed. A democratic constitutional state is characterized by pluralism and diversity. It has to establish a political institutional system within which order and diversity/liberty are possible.
A new democratic constitutional order must:
i.    Recognize a set of individual fundamental rights and freedoms which are deemed to be at the very core of the political construct. In principle, the State is not allowed to encroach upon or to interfere with these rights. Human rights work as a shield or a bulwark.
ii.    Enshrine the rule of law that constitutes a democratic state. Such a system implies the mutual accountability of state powers, and hence the reciprocal transparency and controllability of the legislative, the judicial and, last but not least, the executive power.
iii.    Recognize the postulate of the people’s sovereignty and the principles of democracy and democratic representation.
iv.    A democratic constitution must serve as a creative framework for an enduring quest for democratic self-governance of Kenyan people, their aspirations and desires.
v.    It should compel government to be responsive and answerable to citizens.
vi.    The constitution can assure accountability of public officials and policies by unconditional respect of the rights of each individual and minority against government.
vii.    An expanded and justiciable bill of rights would place fundamental freedoms beyond the reach of political authorities.
viii.    A further safeguard against tyranny is the separation, checking and balancing of the principal powers of government-lawmaking, administration and judicial judgment. Separation of the three constitutional agencies and judicial review are reliable restraints on the will of the majority.
ix.    Beyond the imposition of limits on the state\’s power, constitutional design needs to overcome cultural, economic and social barriers to equal participation of citizens in decisions reached on public matters.
x.    Giving citizens an effective voice in public life is an essential component of democracy.
xi.    A constitutional democracy must allow fair and robust rivalry for political office. Political parties with competing ideologies and programs must contend for public support by means that will secure compliance of the losers to the authority of those who are able to persuade the major part of citizens of the soundness and justice of their political agenda.
xii.    Constitutional arrangements would oblige those in power to compromise and deliberate with a loyal opposition advocating competing policies; delegates are thereby forced to seek harmony between partisan and public interests.
xiii.    The dialogue between the electorate and competitive representatives holds out to the citizenry the prospect of institutional stability and a deepening sense of political identity

Overview of the Draft Constitution
For the last 20 years, Kenyans have been craving for a constitution that in all aspects reflects ideals, values and equity for all within its borders. The Committee of Experts has come up with a harmonized draft that is informed by the Bomas draft, Wako draft, Naivasha accord amongst other contemporary considerations.
Throughout the thread for constitutional review in Kenya, certain issues have remained contentious notwithstanding the numerous consensus efforts;
(i). Devolution;
(ii). Executive;
(iii). Kadhi courts;
(iv). Transitional, savings and repeals clauses

Even with the harmonized draft, these issues have been earmarked contentious.
The nation currently has a challenge to understand whether the CoE, has actually reflected their aspirations. Be as it may, the draft articulates the aspirations of Kenyans but fails to seize the dragon by its horns in the sense it fails to delimit a devolved government that is at the service of the people as compared to the system it currently sets out which actually a bureaucratic system among other salient features and has sought to make transient provisions of permanence.
Article 123, establishes a parliament of Kenya which consist of senate and the National Assembly. Any decision of either House has to be ratified by the other House with an exception of Money Bill. This is critical for checks and balances for vindication of the peoples will.
Article 124 set out the roles of the parliament inter alia:
a.    Enacting legislation;
b.    Deliberating on and resolving issues of concern to the people;
c.    Passing amendments to the constitution;
d.    Approving sharing of revenue among the levels of governments at each level and  appropriating funds for expenditure by the national government and other state organs;
e.    Ensuring equity in sharing of national resources and opportunities among all parts and communities of Kenya;
f.    Scrutinizing and overseeing actions of state organs;
g.    Considering and approving treaties and international agreements;
h.    Approving appointments set out in the constitution or any other legislation;
i.    Reviewing the conduct of the president, deputy president and other state officers;
j.    Approving declarations of war and extensions of state of emergency;

Article 124(3) states that the principal role of senate is to provide an institution through which the devolved government share and participate in the formulation and enactment of national legislation and protect the interests of the devolved governments. This is a positive clause. Pursuant to Article 142, any member of the public can petition parliament to either mane, repeal or enact any law in accordance with the to be enacted procedure though there are no timelines for enactment, like under Article 131 there is proviso to recall a member of parliament. The office of official opposition is constitutionalised (Article 135), this is a positive provision considering that the 9th parliament grappled with this institution when the expected leader of opposition dined with the then ruling government, the creation of National Accord created a lacuna of who constitutes official opposition. Opening of Parliamentary Service Commission, has adopted the policy of checked power equation not an exclusive club of politicians , though the CoE would done better by making the Commission better by providing of Members of Parliament and Senators are ex-officio. On the onset we wish to point out that an electoral system and representation is crucial to determine the model of governance and decentralization of powers duties.

In any democratic system, the aims of a devolved government structure is to empower people, institutionalization of governance structure and processes which autonomous to create the desired results reflective of principles and objects articulated in articles 213 and 214. Be as it may, facts must be addressed ‘squarely’ (sic) Kenya is a nation divided along tribal inclinations and it would be institutionalization of ethnicity if the wave of regionalism addressed on the onset, the dragon of ethnicity can be categorized to regional in this country, preferable to tame it by confining the government structure to Counties and the national government without obsession/hangovers of provincial administration. If really the devolution of government is to guarantee effective delivery of services to the citizenry, then we must embrace the checks and balances by both Senate and the National Assembly as to each other and other arms of the government.  As it is, it seem apparent that the quest for power is at play without due consideration of the taxation implication just to quench thirst of localized tyrants. Preferable to focus on a well and coordinated representation at the county, Senate and National Assembly being alert to the fact that the parliament shall enact legislation to ensure proper coordination between the national government and the localized system.

The next question is whether the CoE has actualized the ideals of equity and equality in representation, without being skeptical facts can adduce more. Consider Bungoma district with six constituencies will be a county with equal representation in the senate with Lugari district with one constituency, is this equity? There is exigency for the Committee to formulate principles of representation based on several aspects for instance mixed member representation. Executive has remained the most controversial phenomena in constitution making across the globe and Kenya is no exception but even then let appreciate political party system in Kenya lacks the requisite discipline, consequently it has instilled fear across the political circles and the citizenry. To my mind imperial presidency can be diluted by a clear checks and balance like the American system. Problems can be solved by taking stabilizers but acknowledgement and finding durable measures. The draft sets the presidential candidate on a national campaign trail with pledges but finally rest in state house with drafting of request to the cabinet to consider adopting certain policies. Without advocating for any particular system we should acknowledge the political inadequacies in this country and then proceed to provide that the CEO of this Republic should be held accountable to his/her pledges but it would be unfair to purport that one can really be held responsible for decisions beyond their mandate.

Key Areas of Focus
i. Electoral system and Representation
Kenya’s political landscape is a minefield that has generated acrimonious political relations. Post-election violence, accusations and counter-accusations of electoral fraud, manipulations and litigations must not remain the hallmark of Kenya politics.  Such a political climate calls for an electoral process capable of healing the wounds resultant of the political tension obtaining in the country.
There is need for an electoral process that can create contended losers, those that lose in humility and are rational enough to realize the election is not all about winning but creating a Kenya that guarantee and protects the fundamental rights and civil liberties of every individual Kenyan. An electoral system can easily be understood as a way in which votes are translated into seats. There are hundreds of electoral systems currently in use and many more permutations on each form. However, there are three broad families of electoral systems: Majority–Plurality Systems (First Past the Post/FPTP); Semi–Proportional Systems; and Proportional representation systems. Kenya’s electoral system is a "first past the post" system with single member constituencies where the candidate with the most votes wins a seat in the national assembly. While the system ensures accountability to constituents for those elected, FPTP has, however, tended to create outright winners who care little about building bridges with contesting parties.
Therefore, used on its own, FPTP tends to fail in the proposed task of healing political wounds. It is in this vain that we propose proportional representation to be merged to FPTP to come up with the best electoral system for the parliamentary vote and proportional representation (PR) proper for the senate.

With a bit of dexterity amassed from experience, the PR system can be merged with the current electoral system to come up with a system that can harness the advantages of both while systematically diminishing the disadvantages associated with the two electoral systems. Therefore, the Mixed Member Proportional Representation (MPPR) would entail that FPTP would be used for contested parliamentary seats while PR would come into force for compensatory seats which, in the current situation, are occupied by non-constituency MPs appointed by the Executive.

Rationale/reasons
Any electoral system that is going to be agreed upon must observe and guarantee
•    Fairness to voters/parties
•    Equality of votes
•    Gender and affirmative principle are safeguarded
•    Greater diversity of parties and representation
•    Greater voter participation
•    Systemic legitimacy
•    should produce strong majority government( which maybe a coalition) that can get things done
•    should produce stable government,
•    Voters will exercise their democratic right through direct voting in a representative to the National Assembly but also ensure that the party he or she supports is awarded seats in Parliament based on proportion of popular vote received by party (MMPR principle)- in the execution of fair representation, equality and parity.
•    Fairness relates to those aspects of the system that ensure that every vote is of equal value and that the parties are treated fairly in their representation in parliament.
•     Inclusiveness; refers to the need for a system to be as all embracing as possible in terms of drawing in groups across the political spectrum to induce shared goals and shared values between them. The system should also be inclusive through ensuring that all groups, however they may be defined, are represented within legislatures. The system should be simple, open and easy to understand.

Vetting of appointments and electoral candidates
Elections and holding public office are an important step forward in fostering democracy, stability and human rights. Candidates to public office must meet certain threshold of integrity and probity.
1.    The Election Commission must set regulations that candidates against whom criminal charge sheets have been framed and accepted for trial by a court of law may be debarred from contesting elections.
2.    Candidates while nominating themselves, have to declare in the form of affidavits their criminal antecedents, if any
3.    Parliament will enact a legislation requiring vetting of all public office holders to be vetted.

Why we strongly recommend for the adoption of Mixed Member Proportional representation (MMPR) in Kenya.
In giving this recommendation we have weighed the following issues
•    Fairness–are there built-in biases that affect results/turnout?
•    Representation–does it produce results that broadly reflect the way society looks?
•    Equality–do all votes count or are many wasted?
•    Accountability–can voters clearly identify and hold governments accountable; does it produce effective opposition?
•    Effectiveness–does it produces stable, accountable working government able to govern?
•    Legitimacy –do voters accept the results of the election; actions of the government / legislature?

A choice of an electoral system is determined by various factors and circumstances of each particular state; it is evident from past and contemporary jurisprudence that Kenyans have been craving for a system of governance that is they have ownership, by implication it has to be representative and so the greater task for this nation is to have a representative and inclusive participation I the formulation of policies and their implementation. The level of political party maturity can and actually influenced our reasoning of the kind of representation that is favourable, the system of devolution in most cases influenced by the kind of electoral system that is at play bearing in mind that political are the central formations in the governance of any modern democratic state.
The underlying course that ought to determine an electoral system is how it can contribute to political accountability in the sense of closer interaction between the public representatives and voters. In the preceding paragraph, accountability means;
     Internal party discipline;
     Role of parliament;
     Party funding;
     Rural/urban differences;
     Separation of powers;
     Relationship between party and support base.
Basically an electoral system should result in a legislature that is representative of the entire nation and that fairly reflects the opinions of the whole electorate and not just the majority, must be an accurate map of the whole nation, a patriot of the people, a faithful echo of their voices, a mirror which reflects accurately the various parts of the country.

Draft Constitution on representation
The draft is abstract in terms of clarity of electoral system that is applicable, either it is deliberate awaiting the outcome of the Interim Independent Boundaries Review Commission and IIEC, the draft should have at-least based on the recent electoral dispute and post election violence, have set out a criteria that it is preferable for the nation to adopt a certain electoral formula, which for us we advocate for a mixed representation system in which;
a). constituency based seats are retained;
b). party based seats are introduced;
c). a sum of party based seats and constituency seats make the legislature;
This is the practice in Lesotho and more countries in the southern Africa region are shifting to it. The advantages are that it individual characters are at scrutiny as well as party ideologies are screened, either way a balance is struck.
Article 103 vests the Parliament with mandate to legislate on the guiding statute on the electoral boundaries for constituencies and counties.  Without sounding rhetorical of role assigned to the parliament, it is evident from recent political statements and declarations, politicians cannot be entrusted with this critical role, we should at-least state the considerations to be taken into account. Every other politician wishes to have their electoral areas minimized to increase their chances of survival.

Proposals
Adopt MMPR that will take care of both the majority and minority by the very nature of being inclusive. Gradually this kind of electoral system will be instrumental in building and strengthening political parties, ownership of the system by the citizenry and foster accountability.

ii). Legislature
Article 123, establishes a parliament of Kenya which consist of Senate and the National Assembly. Any decision of either House has to be ratified by the other House with an exception of Money Bill. This is critical for checks and balances for vindication of the peoples will.

National Assembly- The National Assembly is elected through MMPR electoral system to represent the people and specific interests vide affirmative principle/policy
Senate- represents the devolved units to ensure that Units’ interests are taken into account in the national sphere of government and legislation process.

Imperial presidency and control of Legislature
1.    sword of Damocles to pass vote of no confidence, since can dissolve the National Assembly;
2.    control of parliamentary calendar, parliament enjoys no autonomy; the president has powers to prorogue the National Assembly at any given time depending on the heat of the moment for instance after the 2005 referendum, Kibaki dissolved the cabinet and three days later prorogued the parliament.
3.    Members of cabinet have to remain loyal to the president otherwise risk sacking, furthermore the president can lure Members of Parliament with cabinet portfolios;
4.    power to veto legislation, this defeats the spirit, it is an assumption that the President is a legislator and therefore should own up National Assembly decision;
Article 124 set out the roles of the parliament inter alia:
k.    Enacting legislation;
l.    Deliberating on and resolving issues of concern to the people;
m.    Passing amendments to the constitution;
n.    Approving sharing of revenue among the levels of governments at each level and  appropriating funds for expenditure by the national government and other state organs;
o.    Ensuring equity in sharing of national resources and opportunities among all parts and communities of Kenya;
p.    Scrutinizing and overseeing actions of state organs;
q.    Considering and approving treaties and international agreements;
r.    Approving appointments set out in the constitution or any other legislation;
s.    Reviewing the conduct of the president, deputy president and other state officers;
t.    Approving declarations of war and extensions of state of emergency;

Rationale for bi-cameral House
     Provides checks and balances as between them; the Senate shall have an oversight role over the National Assembly as it agitates for the County views and at the same time offer a mechanism to audit legislation passed by the National Assembly;
     Oversight role over the executive strengthened; all appointments have to be vetted to be in conscience with the principles and values set in chapter three and nine.
     Provides avenue for addressing issues arising from the counties;
     Guarantees inclusiveness and diversity in representation.

iii. Devolution
The governance system in Kenya should reflect national, strong viable devolved County Units and local authorities which may be distinctive, interdependent and interrelated.  These devolved Units shall derive their powers vide the Constitution provisions. They must be able to exercise executive authority on legislation, administration and financial matters independently.
The defunct CKRC received views to vest and transfer powers to provinces and districts (It seems that the replica in the harmonized draft are the Regional and County levels).

Rationale
1.    To break up the epicenter of power.
2.    Recognize the diversity of the country and its people.
3.    promote greater participation in public affairs.
4.    make government more efficient, response and accountable.

The debate in the country currently confuses federalism with devolution; this can be attributed to the alarming debates of ‘majimboism’ (sic) since pre-colonial times.

 Core Principles of devolved governance
     Power should be devolved as close to people as possible compatible with efficiency.
     Government at all levels must be democratic with some form of separation of powers in the South Africa model.
     Interests of minority must be protected.
     Equitable distribution of resources and opportunities for development.
     Relation between different levels should be constructive and co-operative.
In any democratic system, the aims of a devolved government structure is to empower people, institutionalization of governance structure and processes which autonomous to create the desired results reflective of principles and objects articulated in articles 213 and 214.
There are salient factors to be considered for a realistic devolution:
i.    what does it mean in practical terms for Kenyans?;
ii.    how does it affect their constitutional rights?;
iii.    is it viable solution to the problems it purports to solve?;
iv.    does the country have resources to sustain it? ;
v.    maybe the implication at the international levels,
The functions of the proposed three tier system are set out in the fourth schedule and for insight the relevance of regional governments is questionable considering that every county has representation in the senate by electing senators, furthermore the MPs do come from the same counties.
Functions of the Regional Government are:-
1.    the co-ordination and supervision of the counties in the course of implementation of the national and regional policies and standards;
2.    formulation of regional policies
3.    setting of regional standards
4.    regional planning

5.    the monitoring and evaluation of implementation
6.    the coordination of management and delivery of regional  services
7.    co-ordination  of operation and maintenance of regional infrastructure and services
8.    the facilitation and harmonization of operations within the region; and
9.    capacity building and technical assistance to the counties;
Be as it may, facts must be addressed ‘squarely’ (sic) Kenya is a nation divided along tribal inclinations and it would be institutionalization of ethnicity if the wave of regionalism addressed on the onset, the dragon of ethnicity can be categorized to regional in this country, preferable to tame it by confining the government structure to Counties and the national government without obsession/hangovers of provincial administration.

If really the devolution of government is to guarantee effective delivery of services to the citizenry, then we must embrace the checks and balances by both Senate and the National Assembly as to each other and other arms of the government.  As it is, it seem apparent that the quest for power is at play without due consideration of the taxation implication just to quench thirst of localized tyrants.
Preferable to focus on a well and coordinated representation at the county, Senate and National Assembly being alert to the fact that the parliament shall enact legislation to ensure proper coordination between the national government an localized system.
The next question is whether the CoE has actualized the ideals of equity and equality in representation, without being skeptical facts can adduce more. Consider Bungoma district with six constituencies will be a county with equal representation in the senate with Lugari district with one constituency, is this equity? There is exigency for the Committee to formulate principles of representation based on several aspects for instance mixed member representation.

Proposals
1.    Adopt a two tier system of governance that is the central Government and the County Government.
We should not  confuse devolution with federalism and at the same time not to create non-viable institutions. Counties needs to be strengthened and ensure there is structure for co-ordination between the two levels. MMRP ensures inclusiveness in representation and as we have earlier pointed out, what this country needs is reflective representation and not several cocoons of powers shells.
2.    The number of counties should also be economically viable, under harmonized draft, it estimates them to be 74. Consider this: Nigeria with a population of around 120 million has 31 states and Kenya with barely 40 million has at-least 74 counties. Is this economically viable? We need to rethink what we need is it ceremonial structures or what?  We highly recommend that we adopt the counties as were at independence.
3.    There ought to be clear outline of powers as it relates to:
     Executive
     Financial autonomy
     Declaration of emergency; each county should have powers to determine and declare a situation an emergency and there should exist elaborate mechanisms to petition the central government to have a national proclamation of such as a national issue to mobilize requisite resources.
     Legislative powers requisite to the execution of duties and roles to be set out in the constitution pursuant to principles of devolution.
iv. System of government
The MMPR electoral system operates best in a Parliamentary system of governance.  We can have a parliamentary system where the President shares executive authority with a cabinet. The members of Cabinet are accountable individually and collectively to Parliament.  It would be a system of government led by a President, who serves as head of state and chief executive. The President must garner 50 plus 1 and a certain percentage (say 30%) of the devolved units. We strongly object turning a ceasefire arrangement (transitional) into permanence. This has remained the most controversial phenomena in constitution making across the globe and Kenya is no exception but even then let appreciate political party system in Kenya lacks the requisite discipline, consequently it has instilled fear across the political circles and the citizenry. To my mind imperial presidency can be diluted by a clear checks and balance like the American system. Problems cannot be solved by taking stabilizers but acknowledgement and finding durable measures.

The draft sets the presidential candidate on a national campaign trail with pledges but finally rest in state house with drafting of request to the cabinet to consider adopting certain policies. Without advocating for any particular system we should acknowledge the political inadequacies in this country and then proceed to provide that the CEO of this Republic should be held accountable to his/her pledges but it would be unfair to purport that one can really be held responsible for decisions beyond their mandate.
Based on experience of other countries, we prefer a system of governance where if one seeks mandate from the electorates then s/he ought to be accountable to them, accompanied by stringent checks and balances. Secondly, if one seeks mandate from the National Assembly, likewise be accountable to the Parliament.
Analysis of Bomas draft reveals that the quest of constitution was basically to address;
     Abuse of state power;
     Authoritarian president and government;
     Corruption;
     Abuse of human rights
Based on above contentions, then the guiding constitutional principles to  be the reference points;
     Limiting and separation of powers; accountable to people;
     Devolving power;
     Recognition and promotion of diversity;
     Gender equity;
     Promotion and protection of rights
The system of government, determines who has access to power and resources of the state, consequently it affects politics, organization of parties, how ethnicity is approached, efficiency of the executive and the participation of people.
Therefore calls for explicit definition of powers of the executive and the legislature and the relation between them.

Presidential, Parliament and Mixed Systems of Governments- Case studies
1.    India
Executive authority of the Union vests with the Council of Ministers with the Chief Minister as the leader. The Council advises president and it is binding, with a collective responsibility to the House of people known as Lok Sabha. The president is elected by an electoral college of both Houses of the Parliament and the elected members of State Legislative Assemblies by way of proportional representation.
The president exercises several categories of powers:
a). Appoints Prime Minister from the party with the majority in the parliament, who advises the president on the persons to be appointed to the cabinet and must not exceed 15 percent of the elected members. The president also appoints other state officials including judges, ambassadors amongst others.
In the states, the Governor, as the representative of the President, is the head of Executive, but real executive power rests with the Chief Minister who heads the Council of Ministers. The Council of Ministers of a state is collectively responsible to the elected legislative assembly of the state
b). Judicial powers
Can pardon convicts and/or reduce their sentence.
In matters of public interest can seek advisory opinion from the Supreme Court though it is not binding.
c). Legislative Powers
President has powers to summon and prorogue parliament pursuant to the advice of the Council of Ministers.
Every Bill enacted by the Parliament must be assented to by the president and can promulgate an ordinance if the Parliament is not in session, such an ordinance has a maximum lifespan of six weeks unless approved by the Parliament before lapse of stated time.
d). Declaring emergency
The president may declare national emergency if there is war or external aggression or armed rebellion in whole or part of Indian Territory. Such a declaration is pronounced on advice of the Council of Ministers and must be approved by the Parliament within one month. President may also declare State of emergency in a particular state pursuant to the advice of the relevant governor when there is breakdown of constitutional machinery. In times of financial turbulence in India, the president may declare Financial emergency.
In the states, the Governor, as the representative of the President, is the head of Executive, but real executive power rests with the Chief Minister who heads the Council of Ministers. The Council of Ministers of a state is collectively responsible to the elected legislative assembly of the state.

2.    United States of America
Has pure presidential system, with president being the head of both head of government and state with a cabinet that plays advisory role.
Checks and balances
1. The president appoints the officers of the state with the advice and consent of the senate.
2. Congress approves all taxes and expenditure.
3. The Congress has power to remove any State official by way of impeachment, though for the presidency the Chief Justice chairs the senate.
4. Senate approves international treaties and appointment of ambassadors.
5. Power to declare war vests with the Congress.
6. The president can veto legislation, a decision that the Congress can override.

3.    France
Has a mixed system, which was adopted in 1958 to stabilize the political system which had become turbulent due to the frequent changes of government. The president is directly elected by the people. Three different branches make up the French system of government. There is a Presidential branch, a Legislative branch, and a judicial branch. The powers of the Presidential branch under the French system of government are split between the President and a Prime Minister whom he or she appoints. The Legislative branch is broken up into a National Assembly, voted in by the populace, and a Senate, appointed by an electoral college. The Judicial branch is quite complex and extensive, with a Court of Cassation serving as the court of last resort and a Council of State to provide judicial review and interpret laws. Multiple political parties work together with the framework of the French system of government. They often form cooperative coalitions to accomplish things which they would be unable to do individually. Two major coalitions represent parties on the left and right, and one usually controls the government at any given period of time. The diverse parties within the French system of government allow for a greater range of ideas within the government, leading to more progressive legislature.

4.    South Africa
The South African model is a parliamentary system, whereby the president is elected by the National Assembly from one of themselves. Doubles as the head of both the government and the state, s/he appoints the members of the cabinet. The President exercises executive authority with other members of the cabinet.
Differences between Parliamentary and Presidential Systems
1.    Parliamentary system, there is no strict separation of powers as it is in the presidential system.
2.    More checks and balances in presidential system but continuing accountability in parliamentary system, in the latter, the prime minister and the cabinet sits in the legislature and have to keep constantly defending their policies subject to the vote of no confidence.
3.    In a pure presidential system, members of cabinet are not members of legislature thus there is a wider choice of professionals.
4.    More stability in presidential unless on an impeachment not subject to vote of no confidence.
5.    Parliamentary system, executive authority is shared between prime minister and cabinet.
6.    Electorates choose their head of government in presidential system.
7.    Greater separation of powers in presidential system.
As it was in Bomas, the thematic group on executive acknowledged that mixed system is inherently problematic, for instance matters with cross-cutting implication in both internal and external dimensions. It is difficult to demarcate powers clearly and critical to maintain the coherence of state priorities and policies if one wing is accountable to the parliament and the second to the citizenry directly as provided in the draft.

Comparative Systems of Government in Other Parts of the World
a. Head of State is the Head of Government 50 24.8% Afghanistan, Angola, Argentina, American Samoa, Burundi, Brunei Darussalam, Bolivia, Brazil, Botswana, Chile, Costa Rica, Cuba, Cyprus, Dominican Republic, Ecuador, Micronesia, Federated States of, Ghana, Gambia, Guinea, Guatemala, Honduras, Indonesia, Kenya, Korea, Republic of, Sri Lanka, Liberia, Marshall Islands, Maldives, Mexico, Malaysia, Mozambique, Nicaragua, Panama, Peru, Philippines, Paraguay, Seychelles, Sierra Leone, Suriname, El Salvador, Tajikistan, Tonga, Tanzania, United Republic of, Uganda, United States of America, Uruguay, Venezuela, South Africa, Zambia, Zimbabwe,
 b. Directly elected in general elections (simple majority) 20 9.9% Bosnia and Herzegovina, Bangladesh, Burundi, Colombia, Ghana, Gambia, Equatorial Guinea, Guyana, Ireland, Iceland, Kenya, Malawi, Mexico, Philippines, Palestine, Rwanda, Seychelles, Somalia, Sao Tome and Principe, Zambia,
 c. Directly elected in general elections (absolute majority with 2nd round if necessary) 70 34.8% Afghanistan, Armenia, Angola, Austria, Azerbaijan, Burkina Faso, Bulgaria, Benin, Bolivia, Brazil, Belarus, Congo (Kinshasa), Democratic Republic of the, Central African Republic, Congo (Brazzaville), Cote d\’Ivoire, Cameroon, Cape Verde, Cyprus, Djibouti, Algeria, Ecuador, Egypt, Finland, France, Gabon, Georgia, Guatemala, Guinea-Bissau, Croatia, Haiti, Indonesia, Kyrgyzstan, Kazakhstan, Liberia, Lithuania, Montenegro, Madagascar, Macedonia, the Former Yugoslav Republic of, Mali, Mongolia, Mauritania, Namibia, New Caledonia, Niger, Nigeria, Peru, French Polynesia, Poland, Romania, Serbia, Russian Federation, Sudan, Slovenia, Slovakia, Senegal, Chad, Togo, Tajikistan, Turkmenistan, Tunisia, Tanzania, United Republic of, Ukraine, Uganda, Uzbekistan, Wallis and Futuna, Yemen, Mayotte, Zimbabwe, Zanzibar,
 d. Indirectly elected by legislature 25 12.4% Albania, Botswana, China, Czech Republic, Dominica, Estonia, Eritrea, Ethiopia, Fiji, Micronesia, Federated States of, Greece, Hungary, Israel, India, Iraq, Italy, Lao People\’s Democratic Republic, Latvia, Moldova, Republic of, Marshall Islands, Mauritius, Nepal, Suriname, Turkey, Viet Nam,
e. Elected by electoral college or committee (specify) 6 2.9% American Samoa, Germany, Pakistan, Trinidad and Tobago, United States of America, Vanuatu,
f. A Governor General appointed by the Monarch 22 10.9% Antigua and Barbuda, Netherlands Antilles, Australia, Aruba, Barbados, Bahamas, Belize, Canada, Falkland Islands (Malvinas), Grenada, Jamaica, Saint Kitts and Nevis, Cayman Islands, Saint Lucia, New Zealand, Papua New Guinea, Portugal, Solomon Islands, Turks and Caicos Islands, Tokelau, Tuvalu, Saint Vincent and the Grenadines,
g. Inherited monarchy 36 17.9% Antigua and Barbuda, Anguilla, Netherlands Antilles, Australia, Belgium, Bahrain, Brunei Darussalam, Canada, Denmark, Spain, United Kingdom of Great Britain and Northern Ireland, Grenada, Jordan, Japan, Saint Kitts and Nevis, Kuwait, Cayman Islands, Lesotho, Luxembourg, Morocco, Netherlands, Norway, Niue, New Zealand, Oman, Papua New Guinea, Portugal, Qatar, Saudi Arabia, Sweden, Swaziland, Thailand, Tokelau, Tonga, Virgin Islands, British, Samoa,
 h. Other 12 5.9% Andorra, United Arab Emirates, Switzerland, Iran, Islamic Republic of, Cambodia, Lebanon, Libyan Arab Jamahiriya, Burma (Myanmar), Puerto Rico, Syrian Arab Republic, Timor-Leste, Samoa.

Proposals
1.    Adopt the Indian Model of Executive as illustrated above; this will institutionalize various organs of governance including political parties. Kenyans will be certain on who will be the Executive of the country voting and electing their Members of Parliaments, at the same time there is strict checks and balances as between the executive itself and the other organs of the state including the Legislature. The election of president is also inclusive considering the stringent criteria set out under their constitution.
2.    And or adopt a harmonized system of both South African Executive and the Indian one  would be a great deal in institutionalizing our governance institution, a strict balance must be struck not just copy and paste business.
v. The judiciary independence
An independent judiciary aims to uphold and protect the Constitution of Kenya and the rule of law. Its objective is to render accessible, fair, speedy and cost-effective administration of justice in the interest of a safer and more secure Kenya. To ensure the efficiency of its services and to enhance accessibility, the Independent National Prosecution Authority, Courts and the Registry of the High Court have to establish Devolved Units and local structures linked to courts to co-ordinate the implementation of national administration of justice policy. 
Overhaul of our judicial system is long overdue; the country is currently in crisis and swords of Damocles are hanging over it due to the failure of prosecution of post-election violence. The judicial system has lost its faith and Kenyans are looking upon International Criminal Court as a last resort for delivery of justice.

Amend Article 205 to accommodate Senate into vetting Committee that is the vetting of nominees by the Judicial Service Commission is executed by a joint Committee of Senate and National Assembly.
vi. Expanded and justifiable Bill of Rights
In order to safeguard rights and freedoms, and also promote popular sovereignty, participatory governance, justiciable rights, self-determination, and an independent judiciary;
1.    Constitution shall provide entrenched justiciable bill of rights with a protection through judicial review by independent judicial mechanism;
2.    An expanded and justiciable  Bill of rights should impose an obligation to respect rights not only public authorities but also on private actors;
3.    There should be a general limitations provision applicable to all rights, except those treated as non-derogable under international human rights law;
4.    The Public Defender/Protector should be empowered to review governmental action and decisions for non-compliance with human rights obligations.

vii. Land Factor in Kenya
Land issue has remained a thorn in the flesh in the independent Kenya and non of the Government has ever succeeded in addressing this matter amicably, whether by default or style is all the same but one inherent trend is that it is major cause of tribal cleansing (Kiliku PSC Report, Akiwumi and Waki Report) have all pointed fingers at the land issue and how it has been neglected. Njonjo Report called for overhaul of the land systems in the country but no tangible steps have ever been initiated, similar attitude to Ndung’u Report on irregular Land allocation.
The harmonized draft is a milestone in addressing the greed by powerful personalities to allocate themselves big chunks of land to the detriment of the commons. The clause on compensation (adequate and prompt) is well guarded by the provision to not have been illegally acquired. Generally, Chapter ten of the harmonized draft encompasses the ingredients of the draft national land policy before the parliament for adoption.
Proposals
1.    Address the land question from an historical perspective, particularly where public and communal land was appropriated by powerful individuals in post colonial era. To what extent is the illegality issue to be addressed?
2.    National Land Commission should be empowered to undertake audit of the land question in Kenya since pre-colonial and independence but be captured in the transitional mechanism.
viii. Critical state institutions on strengthening democracy:
a.    The Public Protector/Defender.
b.    The Human Rights Commission.
c.    The Commission for Gender Equality.
d.    The Auditor-General.
e.    The Independent Electoral Commission.
f.    The Constitutional Court
g.    Independent Complaints Directorate
h.    Commission for Conciliation, Mediation and Arbitration 
i.    National Prosecuting Authority
j.    Judicial Service Commission
k.    Financial and Fiscal Commission
l.    Public Service Commission
m.    National Land Commission

GUIDING PRINCIPLES
i). These institutions are independent, and subject only to the Constitution and the law, and they must   be impartial and must exercise their powers and perform their functions without fear, favour or prejudice.
 ii). Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions
 iii). No person or organ of state may interfere with the functioning of these institutions.
iv). These institutions are accountable to the National Assembly, and must report on their activities and the performance of their functions to the Assembly at least once a year.

Summary of proposals
Electoral Systems and Representation
    Adopt MMPR model similar to that of Lesotho that actualizes the
Ø principle where majority have their way and minority have their say. This will foster growth of institutions including political parties, and creates sense of ownership and accountability.
Devolution
Adopt a two tier system of devolution with clear and elaborate constitutional provisions in regard to:
    Financial autonomy;
Ø
    Executive powers
Ø
    Legislative powers
Ø
    Emergency measures
Ø
System of Governance
    Adopt a system that is has clear checks
Ø and balances like the Indian model; it is a parliamentary system where the President exercises executive powers subject to the advice of council of Ministers headed by a Prime Minster. There also exist State Governors who are representatives of the president at the state level but real executive authority exercised by the Chief Minister( at the state level elected by the respective state)  in collective responsibility with the members of the executive.
    South African model is also relevant since the president exercises
Ø executive powers but accountable to the party and the parliament.
Land Factor
    Address the land matter with historical perspective.
Ø
    National Land Commission should be empowered to undertake audit of the land question.
Ø
Judiciary
Amend Article 205 to accommodate Senate into vetting Committee that is the vetting of nominees by the Judicial Service Commission is executed by a joint Committee of Senate and National Assembly

Conclusion
It is one thing to make a constitution. It is quite another to breathe life into it, making it a living, vibrant document which affects, and hopefully improves, the reality of people’s life. A living constitution is one which people use in their daily existence, which governs and controls the exercise of state power, and which promotes the values and aspirations expressed in it. The fortunes of a constitution are shaped by many factors: personalities and elites, political parties and other organisations, social structures, economic changes, traditions of constitutionalism—and by the rules and institutions in the constitution itself.

Kenya is faced with the challenge of creating a new constitutional order, very different in practice from our experience so far. It is not impossible that we shall achieve a constitution with principles and institutions appropriate to the new order. But this is no guarantee that they would translate into better governance. The notion of a constitutional order is broader than the text of the constitution. It represents a fundamental commitment to the norms and procedures of the constitution. It has more to do with behaviour, practice, and self conviction of norms than constitutional text. Power belongs to state offices, not to individuals, however exulted, and must be used for the benefit of the people. The purpose for which power must be used and the mode of its exercise are set out in the law. Amusingly not a single dictator on earth has ever confessed that s/he is autocratic, they all profess it is public interest that they adopt a particular mode of governance, however uncouth it may be. However, good the chapter on integrity may sound to be, challenge vests with the spirit to implement the latter of best of the constitutions. Over-concentration of power in the executive is the challenge particularly in Africa and Kenya has not steered itself off the hook.

A particular difficulty in achieving constitutionalism in many states, given colonial history and the diversity of their people, is developing a sense of nationalism that encompasses the whole country. There are often stronger allegiances to the community or the region, and perhaps various, different world views within the country. It is likely that few pre-colonial institutions spanned the communities that now constitute the people of the state. In states where society provides cohesion, common values and stability, the role of the constitution is secondary, concerned more with law making and administration than with promoting national unity, which is taken for granted. However, in post-colonial multi-ethnic states, “nation building” is an essential task of the constitution, involving agreeing on the purposes of the state and on the basis on which different communities co-exist and share a common public space. In other words, its task is to establish a common political community, based on consensus.

The responsibility for “nation building” belongs to all Kenyans and their organisations. But it belongs fundamentally, in multi-ethnic states to political leaders. Few leaders have tried to create a sense of a common identity and destiny among Kenyans. They have been content to encourage and promote sentiments of ethnicity and tribalism, as a way to ensure for themselves the votes of their kin people. At no point are these sentiments stirred up more sharply than at elections, which have traditionally been a period of great tension and often considerable violence. The failure to create a sense of a common nation has tended to valorize hatred and violence, by the state and communities at behest of ethnically based politicians. In these circumstances, constitutional values like human rights, equality, limits on power, and the rule of law have been devalued, even discarded. Today this situation poses the greatest obstacles to the growth of constitutionalism and the ability of the constitution to lay secure and fair foundations of the state and its relationships to communities as well as relations between communities.
 
Nor have the leading politicians shown respect for the constitution. They have picked and chosen the provisions which have helped their careers or fortunes, and most, given the opportunity, have indulged in corruption, violation of the rights of others, and the subversion of state institutions, like the judiciary and the electoral commission. Most of them have not shown any respect for the constitution and its values. If the same persons continue in office, however excellent the constitution, it is highly unlikely that its norms and rules would be observed with any greater care than those of the current constitution.

Accordingly the role of independent institutions will be critical. In the past they too have not served us well , legitimacy for any system of governance is crucial to guarantee inclusive and collective ownership. But ultimately it is the responsibility of the people to ensure respect for the constitution. They have been engaged for over a decade in agitating for and participating in the making of, a new constitution. They have a better understanding of the role and responsibilities of state institutions and officials – and some idea of how they can enforce them. They know that implementing a constitution is not about this or that provision, or even the totality of the constitution, important as these are. It is about the inculcation of a culture of respect for and discipline of the law, acceptance of rulings by the courts and other bodies authorized to interpret the law, giving effect to judicial decisions, acceptance of the limits on the government, respecting and promoting human and collective rights, the participation and empowering of the people. Ultimately the people have to be guardians of the constitution. To perform this role people have to understand the constitution and know their rights. They have to know-how to use the machinery of the constitution and the law to hold public authorities accountable. They should be involved in the conduct of public affairs.

(Mr Wainaina is the Executive Director – International Center for Policy and Conflict).