REFERENDUM TALK: SHOULD WE BRING BACK THE BOMAS DRAFT?


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    Written by: Meshack Masibo

    The political climate of the country at the moment is rife with talk of a constitutional referendum. Different political actors have different views on how best the government should be shaped in light of the recurring election violence every time we have an election. Following the protracted, high-stakes elections in 2013 and 2017, Nasa coalition argued that the time is ripe for Kenyans to reconsider the Bomas Draft document, which the opposition coalition’s principals said is “what Kenyans wanted.” MrOdinga, MrMudavadi and Mr Moses Wetang’ula agreed at a meeting in Nairobi to revive debate on the draft, which they believed is the best guide to end regular political conflicts blamed on the winner-take-all system.
    “The Bomas Draft contains cures to the problems of inclusion, strengthening of devolution, the shape of the Executive, and security sector reforms,” Nasa leaders had said in a statement. However, the draft that the National Super Alliance (Nasa) is now rooting for could be a long way coming as it was altered drastically after the Bomas talks in 2005, leading to the rejection of the final document in a national referendum opposed by MrRailaOdinga, MrKalonzoMusyoka, MrMusaliaMudavadi, MrUhuru Kenyatta and Mr William Ruto, now the President and Deputy President, respectively.
    The independence Constitution was changed in a 2010 referendum — ushering in a purely presidential system that had been opposed by MrOdinga’s camp before they made a U-turn and backed it. “Events in the country are crying out for a non-contested constitutional referendum,” Kitui Senator Enoch Wambua, a close ally of MrMusyoka, then said of the renewed Nasa push. He added that “The Bomas Draft is perhaps the best reference document in the said review. If Jubilee and what is left of Nasa cannot agree on anything else, at least we must be able to agree on the need to fix what is not working for Kenya in the Constitution.”
    Produced at the Bomas of Kenya Delegates’ Conference in 2005 — spearheaded by law professor Yash Pal Ghai — the document that came to be known as the Bomas Draft proposed that Kenya has a President, a Deputy President, a Prime Minister, and several ministers. The Prime Minister, who had to be the leader of the largest political party or coalition in the National Assembly, would be appointed by the President from among MPs with the approval of Parliament.
    The Bomas Draft stated that within seven days following the summoning of the National Assembly after an election, or whenever necessary to fill a vacancy in the office of Prime Minister, other than on the occasion of a vote of no confidence, the President shall appoint as Prime Minister either a member of the National Assembly who is the leader of the largest political party, or coalition of parties, represented in the National Assembly; or if the leader of the largest party or coalition has been unable to command the confidence of the National Assembly, the member of the National Assembly who is the leader of the second largest political party, or coalition of parties represented in the National Assembly.
    Where neither of the persons contemplated has been able to command or retain the confidence of the National Assembly, the President would then propose to the National Assembly the name of a member who, in the President’s opinion, may be able to command the confidence of the National Assembly.
    The document further stated If, within sixty days of the President first proposing a person to be appointed Prime Minister, no person has been confirmed, the National Assembly shall stand dissolved and the Electoral and Boundaries Commission shall conduct a fresh general election for the National Assembly.
    The Premier would be the head of a Cabinet comprising two deputy premiers, a maximum of 20 and a minimum of 15 ministers, and an equal number of deputy ministers. The ministers, the document proposed, would be appointed by the President upon nomination by the Prime Minister from among members of the National Assembly, and subject to the approval of the Senate.
    “A hybrid parliamentary system based on the Bomas Draft will not only allow individuals from smaller communities to rise to the highest office in the land, but also encourage an inclusive system of power sharing,” Nasa stated in its 44-page August 2017 elections manifesto.
    While the Premier would head Cabinet and chair its meetings, the Bomas document allows the President to retain powers to hire and fire the Cabinet, judges, as well as ambassadors. In the recommendations that Nasa now wants examined afresh, the Deputy President will remain the President’s principal assistant, with a full mandate to take over if the Head of State is incapacitated.
    Orange Democratic Movement secretary-general Edwin Sifuna, is recorded saying that the Bomas draft is becoming popular and attractive because “it was a people-driven process”.”We will always hold the Bomas Draft as the best expression of the people’s aspirations, but right now the focus is on electoral justice,” said MrSifuna.
    The said Bomas Draft was altered by the State after the Bomas talks in 2005. The final document was defeated in a national referendum after the No Camp led by RailaOdinga, Uhuru Kenyatta, William Ruto, KalonzoMusyoka, MusaliaMudavadi, among other senior politicians managed to garner more than 57% of the total votes cast. The current Constitution of Kenya that was promulgated in 2010 ushered in a pure Presidential System of Governance which, according to numerous observers and political analysts, has left the country more divided than ever before.

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