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Kenya process continues

The constitution-making process in Kenya continues apace. The Committee of Experts has now submitted a revised harmonized draft to the parliament, which will then submit the document to a referendum. The revised draft retains the semi-presidential structure of the first draft, which has a directly-elected president and a prime minister. The Committee apparently believes that the semi-presidential system represents the best compromise between advocates for a pure presidential or parliamentary system. While comparative experience suggests this regime type may lead to downstream constitutional conflict, it seems to reflect a desire to retain the underlying political compromise between supporters of President Kibaki and Prime Minister Odinga.

A poll at the end of 2009, however, showed that a majority of Kenyans would vote against the draft. Respondents seem to be concerned about the power-sharing structure that the elites have compromised on.

Other changes in the latest draft include the elimination of a proposed system of regions that was not particularly well-developed in the first draft. Counties remain the basic unit of local governance, but the number has been reduced to the original 47 districts from 74 proposed in the first draft. There are a number of technical improvements in the draft, too, such as a mechanism for re-apportionment of county boundaries (Art. 220) and clarification of the term limits provisions, as well as a slight streamlining and reorganization of a bill of rights.

The draft, however, retains a number of unusual features. It has a separate constitutional court, but that courts decisions are apparently subject to appeal to the supreme court in all cases (the first draft had contemplated final decision in elections matters only). While the draft makes clear which court is superior, and thus avoids conflicts between the constitutional and supreme courts over that question, it is odd to have a “constitutional” court that in fact does not have the last word. Another oddity is that the prime minister is limited to ten total years in office. (No other democracies that we know of have term limits for prime ministers.)

Stay tuned for more as the draft moves along in the process.

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