Bomas Draft: the constitutional moment we lost

By Shadrack Muyesu

Sometime in 2004, Parliament amended the law to accord itself defining powers in the constitutional review process. Vide the Constitution of Kenya Review (Amendment) Act, 2004, it established that it had power to alter a draft constitution emerging from a consultative process before it was subjected to a referendum. The matter went to the High Court, which ruled in Parliament’s favour. In ‘Onyango & 12 others v Attorney General & 2 others miscellaneous civil application no 677 of 2005’, Justice (s) Joseph Nyamu, Roselyne Wendoh and Anyara Emukule found that, acting in its representative capacity, Parliament had the right to suggest amendments which could only be vetoed by the people at a referendum.    

It was the most defining moment in the country’s storied constitutional reform odyssey, one which would set the pace for future review processes. As a consequence, the Constitution of Kenya Review Commission Chair Prof Yash Pal Ghai was pushed out, leaving room for the Executive to colonise the process and destroy Prof Ghai’s good work in the Bomas Draft Constitution.

Inter alia, the Bomas Draft contemplated a bicameral legislature with the Senate and the National Assembly operating on a near-equal purview. The Executive was to be led by a premier who would be the leader of the largest political party in Parliament. Naturally, it was opposed by President Kibaki and allies who, seeing it as affront to the status quo, set out to frustrate the issue. 

Although the reformers prevailed in the Constitutional referendum that followed, the Republic had lost a golden constitutional moment. In Prof John Mutakha Kangu’s words, the Bomas Draft process was not only the most concerted, collective and nationally representative the Republic has ever seen, but it also resulted in the most Kenyan Constitution yet.

After the post-election crisis of 2007/2008, the Committee of Experts was set up with the task of harmonising the previous drafts into a new progressive constitution. In 2009, the Committee delivered a Harmonised Draft Constitution that borrowed heavily from the Bomas Draft. It was good law. But like its predecessor, it would be torn apart by politicians, setting the table for the crisis that presently haunts the Republic. 

The history of the mutilation is well documented. The Harmonised Draft Constitution was subjected to a public debate overshadowed by politics. Nevertheless, the resulting document, the Revised Harmonised Draft Constitution, though weaker, retained most of its crucial elements. The real damage occurred at Naivasha where the Abdikadir Mohammed-led Parliamentary Select Committee reduced the document to a copy of
the rejected Wako Draft. 

The harmonised draft 

One of the most needed innovations of the Harmonised Draft Constitution was its Chapter Nine, which carried provisions on leadership and integrity. Article 97 directed that a state officer submit to the Ethics and Anti-corruption Commission a detailed statement declaring their wealth, immediately after assuming state office, once every year during their service and upon ceasing office. Article 98(1) stopped State Officers from engaging in any gainful employment during their period of service. Article 99 meanwhile established the Ethics and Anti-Corruption Commission whose mandate included ensuring the compliance of the Chapter and investigating the truthfulness of the contemplated declarations. These declarations would be made available for inspection by citizens and those found in breach would be disqualified from holding public office.  

Part three of Chapter 10 prescribed the conduct of political parties. Under Article 120, political parties were to publish the sources of their funds regularly as prescribed by the Commissioner of Political Parties. At the close of every financial year, parties were to publish details of how the funds have been used; submit financial statements to the Auditor-General in a form prescribed by the Auditor-General for audit; and submit an annual report of its activities for the financial year to the Commissioner of Political Parties. Parliament was also to come up with legislation providing the maximum amount an individual could donate to a political party, as well as regulate the amount of money spent by or on behalf of a candidate or a party in any election.

Hybrid government

Federal governments usually have bicameral plans. In the typical bicameral system, the Senate is recognised as the upper House because of the higher pedigree of persons it carries and the nature of interests it represents. Various Houses enjoy various powers in various bicameral jurisdictions. What is most important is that each House should be uniquely composed with duties different from the other House. 

Composition is varied by adopting different selection criteria for representatives to either House. In some Federal States, members in either House even serve different terms. Depending on jurisdiction, senators could be appointed, proportionately appointed or elected – directly or through an alternative mode. Ultimately, it is the House that is purely elected or is best representative of the electorate that enjoys most powers. Almost always, however, the Senate’s retains the critical role of oversight. 

Cognizant of this practice and the need to develop a system that would suit the Republic’s unique tastes, the Harmonized Draft Constitution, under Chapter 11, created an Assembly and a Senate operating on varying terms. For the Senate, the House would be composed of representatives from every county nominated by the various County Assemblies and two women and a person representing the youth and those living with disabilities nominated by every region. Citizens would not directly elect their senators.  

Meanwhile, the National Assembly would include Members of Parliament from every Constituency; a woman representative from every county; seven members representing the disabled, with at most four, being of the same gender; and seven members representing marginalised groups, communities and workers. In these terms, Articles 125 and 126 provided an inbuilt solution to the two-thirds gender rule it contemplated elsewhere. 

In so far as functions go, the Senate was described as an institution through which the devolved governments share and participate in the formulation and enactment of national legislation and protect the interests of the devolved governments. Nevertheless, both Houses enjoyed power to originate and veto a Bill bar a money Bill which could only come from the National Assembly. Both houses operated on a near-equal pedestal. The legislative function would be executed horizontally ensuring that the current supremacy wars between the two Houses would not arise.  

Among the offices established within the National Assembly was that of the Leader of the Official Opposition which would be occupied by a representative of the largest political faction in the House. The occupant of this office only came third to the Presidency, the Prime Minister and the Speaker in terms of importance and enjoyed the right to attend all State functions and that of second reply, after the Prime Minister, to an address to the National Assembly by the State President. With this provision, the Harmonised Constitution ensured that the most significant political leaders and the people they represented would not be left out of government business as is the case presently.

Universally, countries have a choice between a presidential and a parliamentary system of government. Executive power is undivided in the former while it is shared between a President who is the head of state and a Prime Minister who is head of Government in the later. Parliamentary systems are built on parliamentary supremacy – a peremptory rule of constitutional law that Parliament is above the other branches of government and can make and amend laws as it sees fit, subject only to its stated jurisdiction if any.

Parliamentary supremacy is different from other supremacies (if I may). Inter alia, there is an executive supremacy which contemplates various forms of autocracy and a constitutional supremacy which places the written constitution above all facets of the State. In selecting a government model, a good constitution not only embraces the moment to cure past mischief, it does so in a manner that fits the unique tastes of the society. 

For the Harmonised Draft Constitution, the Committee of Experts selected a Constitutional system bearing elements of the parliamentary (system). The mischief to be addressed was the historical executive dictatorship. The opportunity to be embraced was a government system that would not only answer the popular call but also be accountable to the people without being too vulnerable to the often shifting political sands. 

What’s more, Kenyans desired a system that would guarantee the equitable distribution of national wealth. To this end the Committee proposed a Federal government with regions being independent from the national government only to the extent that could raise money and influence their own development agenda. Unlike elsewhere where devolved units are autonomous or semi-autonomous yet with vast legislative and administrative power, our devolution would be all about sharing national wealth.   

 The resulting system was unique – neither Federal in the strictest sense, Parliamentary nor even constitutional for sovereignty remained with the people. In many ways, it exemplified autochthony which is the need for constitutions to accommodate the unique socio-economic and political characteristics of the societies which they govern.

Like the Majimbo Constitution, there was to be Prime Minister who was to be the head of government. The Prime Minister would be the leader of the largest political party or coalition of parties, represented in the National Assembly. Inter alia, he would nominate the deputy Premier, Ministers and their Deputies. As the head of Government, he would drive the Executive agenda being accountable to the people through parliament on the same. If unsatisfied with his performance, the National Assembly, by a resolution supported by the votes of more than half of all the members, could pass a motion of no confidence in the Prime Minister, causing him and the rest of the Executive to resign. 

To curb Executive excesses, Article 253 decreed that the National Government would not borrow money, guarantee a loan or receive a grant unless the terms of the transaction were laid before and approved by both houses. Whenever required, the Finance Minister would also furnish parliament with information regarding the total indebtness by way of principle and accumulated interest; how the proceeds of the loan were used; the provisions made for servicing the loan and the progress made in the repayment of the loan. Aggregate borrowing for each financial year was to be regulated by an act of parliament. It is not difficult to imagine the losses the Republic would have been saved had these provisions seen the light of day. 

Alongside the numerous checks against the powers of the Legislature, Article 141(2) provided that An Act which confers a direct pecuniary interest on members of Parliament shall not come into force until after the dissolution of the Parliament that passed the Act. It was a decisive stroke against the dubious habit of parliament enacting and revising laws in its favour.   

In toto, though imperfect, the Harmonised Draft Constitution was a decent document anchored on international best practice yet alive to the unique characteristics of the Republic. It contemplated a hybrid system of government that accommodated as many interests as possible; a balanced parliament with the Senate standing slightly above the National Assembly in terms of composition and responsibility; an empowered parliament, sovereignty of the people and the supremacy of the Constitution; new phenomena in constitutional values, chapters on the Bill of rights and Leadership and Integrity and an elaborate system of checks and balances. After public comment and minor alterations, it was this document that was presented to the Parliamentary Select Committee for consideration.

Mutilation at Naivasha

By dint of the Constitution of Kenya Review Act, 2008, PSC’s mandate was confined to reaching a consensus on the contentious issues. Section 32 (1) (c ) was very specific:  within twenty one days of the expiry of the period provided for in paragraph (a) (i), present the draft Constitution and the report to the Parliamentary Select Committee for deliberation and consensus building on the contentious issues on the basis of the recommendations of the Committee of Experts. Against this instruction, PSC comfortably exceeded its mandate.

The document presented before PSC had only three contentious issues: the system of government, the model of devolution and the transitional procedure. In the first instance, PSC re-authored the document discarding the proposed hybrid system in favour of a purely presidential one. It was a serious mistake that will surely be corrected in the looming review process. 

PSC then turned its focus to Parliament. As Jeremiah Kioni would later reveal, unimpressed by the COE’s proposals of a powerful Senate, the Committee scraped it (Senate) altogether only to reinstate it after Raila Odinga and the Opposition threatened to campaign against the process. Not to be defeated, the Committee reached a compromise in which the Senate was reduced to a ceremonial house of assembly. In spite of the fact that the Senate’s weakness remains a bone of great contention, there has been little mention of an attempted solution in the forthcoming referendum. 

On devolution, PSC did away with regional governments and reduced the number of counties to 47. It also ensured that Senators would be elected alongside MPs in a General Election whilst also scrapping the measures put in place guaranteeing the equitable representation of women, the youth and persons living with disabilities. A similar provision (supra) for the National Assembly was also scrapped and replaced by the more general dictate in Articles 27 (8) and 81 (b) that not more than two thirds of the members of public elective bodies shall be of the same gender. While so doing, it placed the task of ensuring this command the burden of Parliament. The problems that have been experienced in implementation of the two thirds rule are matter of public knowledge. The importance of regional governments is also increasingly revealed with Governors evaluating ways in which they can create regional economic blocks. Curiously, in spite the urgent intervention required, the referendum debate remains silent on these concerns. 

In excess of its mandate, PSC then turned to Chapter Seven of the Harmonized Draft Constitution on Leadership and Integrity removing provisions which demanded that State Officers declare their wealth periodically; desist from engaging in alternative employment during their period of service; maintain a bank account outside the Republic as well as engaging in conduct that would bring their office into disrepute. Although the Committee directed that these provisions be housed under an Act of Parliament, this meant that Parliament, against the intention of Kenyans now assumed the power of determining the content of Chapter seven (now Chapter six). 

The new Leadership and Integrity Act, 2012 that followed not only failed to provide clear guidelines on implementation, it also did away with the directive to declare wealth; the ban on participating in gainful employment as long as it was not incompatible with the State Officer’s responsibilities and the ban on maintenance of an external bank account without the permission of the Ethics and Anti-Corruption Commission. The duty to maintain a public register of the assets and liabilities of state officers was also taken away from the EACC. The result is a Chapter Six whose implementation is largely reliant on goodwill without which it is impossible to implement. Chapter seven wasn’t the only casualty, in a bid to de-bulk the Harmonized Draft Constitution; a lot of mandatory provisions were left to the law making discretion of Parliament which threated the overall intent of the Constitution.   It was one of the greatest scandals of the Naivasha retreat.  

With regard to fiscal policy, PSC did away with the provisions of Article 253 (supra) leaving the Executive with free-reign to borrow and enter into financial arrangements with external entities at the expense of the socio-economic health of the Republic. The Country’s current precarious financial situation can be attributed to this removal of accountability. 

The Committee also did away with Article 257 requiring the Government at both levels to not only provide a fiscal plan in their yearly budgets but also provide an explanation on expenditure as well as a detail analysis on projected debt and how it will be financed. Although government provides this explanation in the budget and the Finance Act, such provision is not anchored on any law and is largely discretionary. Finally on this issue, PSC deleted provisions requiring sanctions against contractors that have not performed according to contractual agreements, professionally regulated procedures or law. Thanks to the PSC, the country was now at the mercy of rogue contractors. 

Provisions detailing the establishment of a Constitutional Court; the Public Defender’s office and the removal of regulations requiring that parliament shall to benefit from a legislation, there are more examples of important provisions that never featured in the resultant Constitution of Kenya 2010. I reserve their discussion for a later day. The message of this essay is that the problems facing the Republic are largely self-inflicted. While the near future presents us with an opportunity to correct these errors, the reform process shouldn’t be left with politicians. An enduring lesson of the past is that politicians cannot be trusted with steering an exercise of such importance. Danger can already be seen in the way important issues as highlighted herein have been ignored in the on-going referendum debate. 

Kenyans need to own the process.  (