By Theoneste Asiimwe

Senior Researcher East Africa


The struggle for a new Constitution by Kenya appears to be heading for disaster and unlikely to be achieved before the next general elections. Differences between the government and the opposition on whether minimum or comprehensive reforms should be adopted before the next general election have intensified.


Last week, the opposition members on the Multi-Sectoral Committee (MSC), a sub-committee of the Multi Sectoral Forum (MSF) charged with reviewing the new constitution, walked out of the meeting which had brought them together with the Minister of Justice and Constitutional Affairs, Martha Karua.


The minister rejected the minimum reforms suggested by the MSC and said that the government was preparing a bill derived from its recommendations to be proposed before the parliament in the coming days. The opposition members accused him of coming to the meeting with a predetermined plan and lack of the will to affect reforms.


“You must be a reformist to lead a process like this but the Justice and Constitutional Affairs Minister is not a reformist,” Dalmas Otieno from KANU who also co-chaired the MSC was heard telling Mbita MP Otieno Kajwang while leading the walk out.


The opposition wants the following minimum reforms on the constitution before the next general elections:


● Independence of the Electoral Commission of Kenya (ECK)

● Any winning President to garner 51 percent of votes

● Reduce the powers of the President

● Affirmative action

● Parliamentary Reforms


According to the proposed constitutional amendments to ensure the independence of the ECK it must be reconstituted. Appointment of its members must be done by the President, but subject to parliamentary approval. It is proposed that nomination and appointment of its members by the parliament has to be larger than the final number so as to ensure discretion by the President. But its membership must also reflect Kenya’s ethnic, geographical, cultural, political, social and economic diversity and the principle of gender equality.


The minimum reforms suggests that, a winning President should get 50 percent of votes plus one as opposed to the current law which states that a winning President has to get 25 percent of votes minimum in at least five of the eight Kenyan provinces, which should be no problem for Kibaki.

Related to this, they want the powers of the executive President reduced. How this will be done is not yet clear but the rainbow coalition, which brought Kibaki to power, has suggested the creation of a post of prime minister who could be responsible for the daily government businesses.


In this regard, also to ensure that the President does not encroach on opposition, it is suggested that he should be forbidden to appoint cabinet ministers from other political parties. If he appoints a member from another party without its authorization the seat of the said member should be declared vacant.


In order to ensure affirmative action to ameliorate national unity or denial and infringement on political, economic, social and cultural rights, it is suggested that women, persons with disabilities, ethnic and other minorities, pastoralists and trade unions are represented in the parliament. This calls for a review of parliamentary composition and it is proposed that the number of MPs be increased from the current 222 to a total of 316 of with at least 96 female ministers.


This debate of Kenya’s constitutional review has been ongoing since the country adopted multiparty politics. However the trend increased after the 1997 general elections when a Review Act was enacted, ushering in a comprehensive constitutional review process. Finally, the constitutional conference debate at Bomas of Kenya which adopted a draft constitution that was rejected in a referendum held last November had hoped to end this process.


GLCSS believes that lack of compromise between the opposition and the government on what should be contained in the new constitution and the time frame when it should be affected will continue and likely to dominate the debate in the next general election.


It is unlikely that the government will receive the 65 percent support required to push through the Bill authorizing constitutional comprehensive reforms and the same with the opposition side, that insists on minimum reforms which could only ensure leveling the playing field before the general elections. It is likely that the government could only get a slim majority support of 112 MPs, and the ODM-K can hardly mobilize more than 110 MPs. Even if FORD-K supports it, it cannot reach the required number of 145 MPs out of the total of 222 MPs.


GLCSS further believes that, President Kibaki’s ability to handle political events will be tested on this controversial issue. If Karua’s bills manage to pass through and comprehensive reforms carried out before the general elections, Kibaki is likely to lose in the next elections like his predecessor, Daniel Arap Moi, when he obstructed the constitutional review exercise costing him the Presidency. This was also responsible for the defeat of his recent backed constitutional referendum.


In contrast, GLCSS believes that if the trend remains unchanged and Kenyans go to polls with the present constitution, Kibaki is likely to be favored. This is because in addition to the advantage of his incumbency, his government has scored high on the economic side, despite the constant accusations of corruption.


Politically he has been under constant pressure from the opposition, especially after dropping senior ministers in a cabinet reshuffle that followed his rejected constitutional referendum, such as Raila Odinga and Kalonzo Musyoka. This has enabled him to bring in new faces which could support him in the next elections


President Kibaki has been playing the carrot and stick game to ensure that he maintains control on his cabinet. This has been achieved through changing his cabinet five times in just five years and each time with cause to protect his leadership from suffering a vote of no confidence.


He is a competent judge of timing. Last week’s mini-reshuffles he reinstated Professor Goerge Saitoto and Kiraitu Murungi into the cabinet. This could be preparation for the next general election and to weaken the opposition.


It is further suggested that he wants to ensure support from all groups and political parties. In fact, his current cabinet has 11 slots occupied by MPs from KANU, the official opposition party, and FORD-K, enabling him to keep his opposition divided.


Political analysts predict that once Kibaki’s unpopularity persists, he could use his presidential prerogatives to dissolve the current parliament so as to avoid the opposition MP’s from giving him a vote of no confidence. In this case he could call for a general election earlier than stated and hence defeat the opposition which appears as of yet unprepared.


The Great Lakes Centre for Strategic Studies is a London-based think tank with offices in Kigali and Kampala.



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