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 NAIROBI 00000149 002 OF 006 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 NAIROBI 00000149 003 OF 006 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 NAIROBI 00000149 004 OF 006 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 NAIROBI 00000149 005 OF 006 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 NAIROBI 00000149 006 OF 006 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