Constitutional Review Update and Next Steps

C O N F I D E N T I A L SECTION 01 OF 06 NAIROBI 000149

SIPDIS
DEPT FOR AF/E DRIANO

E.O. 12958: DECL: 2020/02/08
TAGS: PGOV PREL PHUM KE
SUBJECT: Constitutional Review Update and Next Steps

REF: 10 NAIROBI 81; 10 NAIROBI 29

CLASSIFIED BY: Mitch Benedict, Political Counselor, State, Political;
REASON: 1.4(B),(D)


1. (C) Summary: On January 29 the Parliamentary Select Committee
(PSC) reached

agreement on what are considered the most contentious issues (the
executive

structure, devolution of authority, and transition arrangements) in
a revised draft of

the constitution. The PSC sent its recommendations back to the
Committee of Experts

(COE),which must make final revisions to the draft by February 18.
The agreement

by the PSC (which is composed of the key representatives of
President Kibaki and

Prime Minister Odinga) represents a major positive step forward in
the

constitutional review process. Further to our previous reporting, a
number

of the members of the PSC have confirmed that U.S. public and
private

pressure, particularly through the calls by the Secretary and
President,

played a key role in influencing the members of the PSC to achieve

compromise. The COE has asked the U.S. to help provide two experts,
one on

technical drafting, and one constitutional expert on how the U.S.
system

works (since what the PSC adopted is essentially a U.S.-type
presidential

system). We will provide these experts through an existing USAID

mechanism. We are quietly encouraging the COE to work within the
parameters

of the PSC compromise. After the COE completes its work by Feb. 18,
it

presents the draft back to the PSC, which must then table the draft
to the

full Parliament within one week. End Summary.



Agreement on Key Issues




2. (C) Following eleven days of often intense marathon sessions
held at a lodge

in Naivasha, the 26-member Parliamentary Select Committee (PSC) on
the

review of the constitution reached political compromises on all the
key

contentious issues, and handed their recommendations back to the
Committee

of Experts for inclusion into the constitutional draft.
Representing

President Kibaki's PNU alliance were Uhuru Kenyatta (Deputy Prime
Minister

and Minister of Finance),Mutula Kilonzo (Minister of Justice and

Constitutional Affairs),Moses Wetangula (Minister of Foreign
Affairs),and

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Martha Karua (former Minister of Justice). Heavy hittters from
Prime

Minister Odinga's ODM included: Musalia Mudavadi (Deputy Prime
Minister),

James Orengo (Minister of Land),William Ruto (Minister of
Agriculture),

Sally Kosgei (Minister of Higher Education),Najib Balala (Minister
of

Tourism),and Charity Ngilu (Minister of Water and Irrigation).
Among other

issues, the PSC addressed the key contentious issues of the nature
and

structure of executive power, the devolution of power,
representation, and

transition arrangements.




3. (C) On the question of the executive, the COE had proposed a
draft

constitution with a hybrid system of government that included both
a

president and prime minister. The PSC rejected the hybrid system
and came

out in favor of a presidential system with checks and balances. The

president would be directly elected by a 50 percent plus one vote
(and would

have to win at least 25 percent of the vote in more than half the
counties) as

both head of state and government. Members of cabinet (to be
"Secretaries"

vice Ministers),would be appointed from outside parliament, and
any

Member of Parliament appointed to cabinet would have to relinquish

his/her seat. The cabinet would consist of not more than 25
members.

Parliament would have the power to control its own schedule and vet
and

approve key appointments of the president, such as members of
cabinet,

constitutional office holders, and ambassadors. Parliament also
could

impeach the president.




4. (C) With regard to devolution, or decentralization of power, the
PSC opted

for a two-tier system of government as opposed to the three tier
system of

local, regional, and national government as mooted in the COE's
draft. The

PSC supported the creation of 47 counties as proposed in the COE
draft.

The proposed counties would be based on and identical to the
existing

districts prior to 1992. Each county would have an assembly and an
elected

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county executive, and would elect one person to represent the
county at the

national level in a Senate, which would be a lower house of the
bicameral

legislature. The Senate would deal only with issues pertaining to
the

counties and would not legislate on national issues. Specifically,
the

membership of the Senate would be set at 63 -- 47 elected, and 16
special

seats for women, minorities, and the disadvantaged. The PSC
recommended

that the system of Provincial Administration be retained,
presumably under

the Office of the President as now exists. Therefore, the county
councils

would have both executive and legislative functions, but would be
tightly

limited to only very parochial issues.




5. (C) The most talked about recommendation of the PSC is the
expansion of

Parliament from the current 210 constituencies to 290 elective

constituencies, plus 47 additional county representatives (to be
all women

for a period of 20 years),and 12 nominated seats for a total
National

Assembly of 349. Boundary demarcations for the new constituencies
are still

to be determined by the Interim Independent Boundaries Review
Commission.

However, the report of the PSC to the COE was ambiguous on the
issue of

constituency demarcation. While the PSC spoke of an additional 80

constituencies, they also "recommended the retention of the 210

constituencies, as delineated (for only the next election)...."




6. (C) With regard to the 80 additional constituencies, the PSC
allocated the

seats among the provinces as follows: 9 for Nairobi, 5 for Coast; 5
for

Northeast; 13 for Eastern; 4 for Central; 27 for Rift Valley; 10
for

Western; and, 7 for Nyanza. The PSC also recommended that
constituencies

differ in population by no more than 30 percent, "save for sparsely

populated areas and cities," which may deviate by no more than 40
percent.

The difference was created primarily to cater to those members from
the

sparsely populated north who have long argued for the size of a
constituency

as a determining factor in representation. (Note: Kenyan
parliamentary

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constituencies vary significantly in size and population: some

constituencies are less than 300 square kilometers, while others
are over

30,000 square kilometers; one constituency has over 250,000 people,
while

another less than 11,000. End Note).




7. (C) Other changes recommended by the PSC included elimination
from the

constitution of some of the social "rights" (i.e. vague assertions
regarding

the "right" to education, health care, etc.) that were in the first
drafts.

Also dropped were some of the long-standing "constitutional
commissions,"

which of course has led to those affected arguing strenuously for
their

reinstatement. The PSC did not address the issue of the judiciary
in any

comprehensive way, but they did recommend the elimination of the

Constitutional Court, with its duties to be assumed by a Supreme
Court.

Most notably, the PSC did not support the firing and rehiring after
vetting

of all judges as mooted by the COE. PSC Chair Mohammed Abdikadir
told us

that, while such a radical step might be attractive in terms of
shaking up

the judiciary, it would serve only to add to the already sizeable
problem of

case backlogs.



Next Steps




8. (C) The COE now has 21 days (from January 29 to February 18) to
revise the

draft and consider incorporation of the recommendations of the PSC
into a

revised draft and return that draft to the PSC, which then has 7
days to

table the draft in Parliament. The COE is not required to take on
board all

the recommendations of the PSC. However, PSC Chair Abdikadir told
us he

expects the COE to take most, if not all, the recommendations of
the PSC,

albeit with minor tinkering. Members of the COE have told us they
largely

viewed the PSC's input positively, but mostly they were pleased
that the two

major political factions representing the President and Prime
Minister have

negotiated and achieved a comprehensive compromise. In view of
that, and

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the desire to achieve overall approval by the Parliament, the COE
indeed is

likely to submit to the Parliament a document that represents
closely the

recommendations of the PSC.




9. (C) We anticipate the COE is likely to reduce the number of
constituencies

proposed by the PSC. Not only was this out of scope of the PSC's
mandate to

discuss "contentious issues," but in the days since the PSC made
the

recommendation the focus of public comment has been against their
expansion

of Parliament. At 210 elected members -- each of whom earns
approximately

$17,000 a month in salary and allowances -- Parliament already
consumes

about 5 percent of the GOK's budget. Prime Minister Odinga has come
out

publicly against such a large increase in Parliament since the
release of

the PSC's recommendation. We also expect the COE to try and
strengthen the

PSC's vision for a Senate, giving it a more equal legislative role
to that

of Parliament, and increasing its checks and balance functions on
the

executive.




10. (C) On February 3 President invoked his powers to convene
Parliament, which

otherwise was not going to return until mid-March, and directed
that they

return on February 23. Parliament is then expected both to debate
the

constitution, as well as extend the mandate of the COE. The COE was

appointed on February 23, 2009 and sworn in on March 2, 2009 with a
one-year

mandate. Therefore, the COE will have to be extended in office in
order for

it to operate at least through the period necessary to finalize a

constitution that will be put forth to the nation in a referendum.
After the

final draft is returned by the COE to the PSC on Feb. 18, the PSC
must then

table the draft before the full Parliament within one week. The
Parliament

then has 15 days to debate the draft (until March 12) and return it
yet

again to the COE, which has 7 days to make further revisions (thus
by March

19). The Parliament then has 21 days to finalize discussion on the
draft

(thus by April 9). The rest of the ambitious schedule states that

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the

government must then publish the draft constitution by May 9, and
that a

national referendum must by held no later than July 8.



USG Assistance




11. (C) Noting that Kenya has now opted for a "U.S. style
presidential system,"

PSC Chair Abdikadir told us that Kenya is lacking experts who can
advise on

the details of a presidential-style constitution. COE Chairman
Kitonga has

expressed the same. Consequently, separately both Abdikadir and
Kitonga

have requested USG assistance with constitutional experts who can
advise on

details relating to a presidential system and a Senate. We are
already

providing expert legal assistance through the International
Development Law

Organization (IDLO),and we are working to identify immediately
resources

and personnel so that we can be responsive to the COE and PSC as
they work

to finalize a new draft constitution for Kenya.
RANNEBERGER