By
Prof. Mauri Yambo
[Nairobi: September 22, 2005]
INTRODUCTION: In the afternoon of September 22, 2005, UASU Nairobi Chapter hosted a panel-forum in Taifa Hall, University of Nairobi. The panel was chaired by Dr. Winnie Mitula (Chairperson of UASU Nairobi Chapter). The panellists included Prof. V. Simiyu (History), Prof. P. Wanyande (Political Science), myself (Sociology) and several others. The following nine points constituted my initial submission. This post is published purely for the record, as it has clearly been overtaken by events. Or has it, entirely?
1. Do not postpone the referendum scheduled for November 21, 2005. Instead, deal with the contentious issues and table the necessary amendments to the Wako Bill in Parliament. It can be done. It must be done.
2. Adopt the Bomas provisions for the appointment of a Prime Minister. In the interest of Multi-party and Parliamentary democracy, the PM should be “the member of the Assembly who is the leader of the of the largest political party, or coalition of parties, represented in the Assembly.” If he/she is “unable to command the confidence of the Assembly,” then the Bomas Plan B should come into force. However, if within sixty days Parliament is still unable to agree on a Prime Minister, then, instead of dissolving the Assembly at this juncture, the President should have the power to appoint a Prime Minister from among the members of Parliament who will immediately assume his/her duties and proceed to establish a “Government of National Unity” or a “Grand Coalition.” Should this effort fail in the next thirty days, then the President should dissolve Parliament and call fresh general elections.
3. In order to secure our multi-party democracy, no MP should be appointed Minister or Deputy Minister without the written consent of his/her political party; and, in any case, no MP who is not a member of the ruling or grand coalition should be appointed Minister or Deputy Minister.
4. Our political history suggests that if we are to secure party loyalty and discipline, strengthen the Assembly’s watchdog role and reinforce the principle of “separation of powers,”then we must entrench in the Constitution the requirement that all party coalitions be concluded and formalized in writing, and be signed by persons competent to do so and representing the respective parties in the coalition. Each party must attach to the coalition document a supporting resolution adopted by its executive body. Copies of the coalition agreement, and the supporting resolutions, must be deposited with the Speaker of the Assembly.
5. Members of the National Assembly appointed Minister or Deputy Minister should retain their seats in the Assembly, and no person who is not a member of the National Assembly should be appointed Minister or Deputy Minister.
6. A specific formula should be inserted in the constitution to entrench the principle that not less than one third of all seats in the National Assembly shall be occupied by women. The formula should establish “Supra Constituencies,” whose boundaries should coincide with those of a district or a combination of contiguous districts, as the Electoral and Boundaries Commission may determine from time to time, in such a way as to ensure that one third of all National Assembly seats shall always be available for contest by women at a general election.
7. While the President shall be both the Head of State and Head of Government, the Prime Minister shall be the Leader of Government Business both within and outside Parliament. As proposed in the Bomas draft, the President shall appoint and dismiss the Prime Minister. The Prime Minister shall nominate, and the President shall appoint, the two Deputy Prime Ministers and “not less than fifteen or more than twenty ministers and deputy ministers,”subject to approval by Parliament. Contrary to Bomas, however, Cabinet meetings shall be chaired by the President, and in his/her absence (or upon written delegation by the President) by the Prime Minister. The Prime Minister “shall co-ordinate the work of the ministries and the preparation of legislation, and is responsible to [both the President and] Parliament.”
8. Consistent with the foregoing, the President should have all the other functions stipulated in the Bomas draft.
9. Parliament must retain the power to pass a vote of no confidence in the President, the Deputy President, the Prime Minister, the Deputy Prime Ministers, the Ministers and Deputy Ministers.
This would entrench Section 17, subsection 5, of The National Assembly and Presidential Elections Act (CAP 7), which states that: “No person who is elected or nominated as a member of the National Assembly with the support of or as a supporter of a political party (other than the party whose candidate has been elected President [change that to read “other than a party in the ruling coalition] at an election) shall be appointed Minister [or Deputy Minister] of the Government of Kenya under section 16 of the Constitution without the concurrence of the party which supported him for election or nominated him...”
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