VERBATIM REPORT OF PROCEEDINGS OF THE COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW CONSULTATIVE FORUM WITH POLITICAL PARTIES HELD ON 3 RD SEPTEMBER 2009 AT LEISURE LODGE RESORT, MOMBASA Page 1 of 160 VERBATIM RECORD OF PROCEEDINGS OF THE COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW CONSULTATIVE FORUM WITH POLITICAL PARTIES, HELD ON 03 RD SEPTEMBER 2009 AT LEISURE LODGE RESORT, MOMBASA Present: Mr. Nzamba Kitonga, S.C. Chairperson Ms. Atsango Chesoni Vice-Chairperson Mr. Abdirashid Abdullahi Member Mr. Bobby Mkangi Member Dr. Chaloka Beyani Member Prof. Christina Murray Member Prof. Frederick Ssempebwa Member Ms. Njoki Ndung’u Member Mr. Amollo Otiende Member Dr. Ekuru Aukot Director, Ex-Officio Apologies: Hon. Amos Wako, A.G. Member, Ex-Officio In Attendance: Ms. Veronica Nduva Deputy Director, Civic Education, Mobilization and Outreach Mr. Vitalis Musebe Deputy Director, Public Information and Media Dr. Michael Chelogoy Deputy Director, Research, Drafting & Technical Support Mr. Ibrahim Ahmed Programme Officer, Civic Education, Mobilization and Outreach Mr. David Seurei Programme Officer, Civic Education, Mobilization and Outreach Ms. Mary Njoroge Senior Secretary, Civic Education, Mobilization and Outreach Ms. Hellen Kimari Hansard Reporter Ms. Susan Kimiti Hansard Reporter Mr. John Koross Office Assistant Mr. Vincent Mbuka Office Assistant Ms. Zahra Haji Assistant Programme Officer, Public Information and Media Mr. Elijah Girimani Assistant Programme Officer, Pubic Information and Media Page 2 of 160 Meeting was called to order at 9.03 a.m. with Mr. Nzamba Kitonga in the Chair. Ms. Veronica Nduva: For those who are outside, we are going to start the meeting. I would like to call the meeting to order, High Table. Thank you. Good morning once again, ladies and gentlemen, welcome to the second of our retreat on; Ensuring Political Consensus towards a harmonized Constitution, Political Parties Retreat of all the registered Political Parties, it is a pressure to have all of you once again this morning. For those who have joined us today, you are most welcome and you will catch up with the proceedings. Just to start us off, we are just going to have again a short word of prayer so I am going to call upon two volunteers, one Christian and one Muslim. Please state your name on the microphone even as you offer the prayers. (Christian Prayer): Let us pray. Our God and our Father we want to bow before you, the Creator of the Heavens and the earth. The earth is yours, the day is yours. We bow to you for health; we pray in the name of the Lord Jesus for help upon the Constitutional Experts and the Constitutional Parties, for without you, we can do nothing. Lord we thank you because you are more interested, you have more interest for the Nations to create justice and righteousness. Today as we deliberate for the way forward and other matters, we look to you for help. I pray you will help the Chairman, the Vice Chairman of the Constitutional Experts and all the other Experts. Your hand is stronger than our hand. We thank you because you love us. We pray that as we continue, you will bless everyone. In Jesus Name we Pray, Amen. Mr. Abdi Ali: (Muslim Prayer in Arabic) Ms. Veronica Nduva: Thank you, you may all take your seats. Welcome again to the proceedings, just a short announcement, someone lost this, ( flash disk) so you claim it from me. A Participant: What is it? Page 3 of 160 Ms. Veronica Nduva: I am not going to say what it is, it is the owner who has to come and say what it is. I would like to welcome this morning, the Chair of the session, Prof. Frederick Ssempebwa. Prof. Ssempebwa is a Ugandan Lawyer, before he was appointed to the Committee of Experts by the Panel of Eminent Persons, Prof. Ssempebwa has served as a cabinet Minister in Uganda, he steered the Constitutional Review Process in Uganda as its Chairman and also currently serves as the Chairman to the East African Law Society. Welcome, Prof. Ssempebwa. He was the President, sorry, of the East African Law Society. Prof. Frederick Ssempebwa: Morning everyone, I hope we are all refreshed after yesterday’s eats and drinks and the exercises that followed. Now, before we start the session this morning, there was a feeling yesterday that we did not emphasize the two extremes, someone called them two extremes, the difference between the Presidential and the Parliamentary system. So we thought we would take off very few minutes to remind ourselves about the major differences between these two systems of government. Beginning with the Presidential System as you see, the main features are that the President who is the Head of State and Head of Government is directly elected by the people, so his or her mandate emanates from the people. The Head of Government and Head of State is normally elected for a fixed term, it could be four years as in the U.S or five years as mostly elsewhere. This system is built on separation of functions, therefore the Head of the Executive has the executive functions and exercises them through a Cabinet which he or she appoints and this is separate drawn outside of Parliament so that the separation is emphasized. In this system, accountability is to the people through elections and the purpose of this separation is for checks and balances. How are these checks and balances exercised? There are three organs of government, that is the Head of State who has been elected, then side by side a separate legislature, also directly elected and its mandate therefore is from the people. The other important organ of State is the Judiciary, which normally is appointed by the Executive and the variations of how this could be done. Finally, there are the newer institutions Page 4 of 160 of democracy which also provide for checks and balances; Independent Electoral Commissions, Ombudsman and so on. The checks and balances through the Legislature are normally the Legislature has got to discuss the policies presented by the Executive, pass legislation and approve important executive functions such as appointments of Constitutional officer holders that is the Cabinet, Judges and so on. Then in this system, because the President is directly elected, he or she cannot be removed by Parliament but there is a provision for impeachment incase the President has violated the Constitution or the Law. Those are some of the checks and balances. For the Judiciary it also comes in because it also checks the excesses of the Executive as well as the Legislature through pronouncements on validity of those actions. Now we go to the Parliamentary System. In this system, normally the Executive is headed by a Prime Minister who is drawn from Parliament, there is provision for a separate Head of State, but sometimes that is not provided for. The Head of Government could be the Head of State as well. So you could have a Parliamentary System in which the President is drawn from Parliament and therefore accountable to Parliament with a possible check here with a vote of no confidence incase Parliament disapproves of what the Government is doing. There are no term limits here because even the Executive itself, either the Prime Minister or the President, could decide on dissolving Parliament before the term of office ends. This as you heard is done in England if the Prime Minister sees that there is a need for early election, he or she could dissolve Parliament. So, the checks here , could be about the same but the additional checks and balance here is the threat of a vote of no confidence on the Executive on the one hand and then on the other, the same threat of dissolution of Parliament in case things are not going on properly. Now, when we discuss Constitutions for our States, we do not have to choose any of these, we could of course, but it may not function very well because either of them is susceptible to our views and we in African States that includes Kenya, we have gone through experiences of dictatorship. So, we are looking at these systems with an eye to what loopholes could be used by someone who wants to abuse the system. Page 5 of 160 I remember I was in a gathering somewhere when we were plotting to overthrow Amin and someone came up with a statement which has always been on my mind. He said that the seeds of dictatorship are with all of us. He was referring to our group and I think that could apply to every member of humankind. So in Constitution making, we want to have a system where these seeds will not germinate and thrive and also we have to look at those we have gone through. In my community, we have a saying that if you see an insect that looks like the one which stung you before, you run away from it. So we are also looking at what we have gone through. The system we have gone through is one that we do not want, so how do we change it? When you look at the Presidential System, the potential for checks and balances are very high. But also on the other side, there is a potential for friction and ultimately a possible deadlock. In some countries like the States, this is managed very well because their democracies have matured, but in ours , we have to be careful whether governments can live through these frictions where Parliament and the Executive fails to agree and the ultimate is of course when the Executive and Parliament come from separate parties.