A few weeks later, Kibwana invited me to his office at Harambee House for a chat and told me of the frustrations that he had with the Presidents men. Despite being the Constitutional adviser, Kibwana was not totally in control of the advice that got to President Kibaki especially in regards to the Constitution review process. In his words, Kibwana’s briefs to the President would come back changed taking a different direction following meetings that Kibaki would have with his men.
The Kibaki men that Kibwana was talking about included the ministers from the PNU side and more specifically the then Deputy Prime Minister Uhuru Kenyatta, Martha Karua and the late minister John Michuki and this was not the first time or the last time that such a senior government official would intimate of such frustrations. The machinations of the “Kibaki Men” would be more evident in Naivasha as they ensure that PNU had its way in all the key areas of the Constitution.
I would later meet Miguna in Naivasha as MPs mutilated the draft Constitution but this time he was not as friendly as he was in Diani. He just like the rest of the strategists and PSC members at the Great Rift Valley Lodge was under pressure as everyone outside the hotel was anticipating the results. Miguna perceived all journalists covering the PSC closed-door meetings as PNU moles who would pick Raila’s secrets from him and give to Kibaki’s side.
In Naivasha, holed up in cottages at different corners of the Great Rift Valley lodge were teams of technocrats who tried the best never to appear in public. Their brief was simple. Do as much research as possible to beat the other team at the negotiating table and provide it as fast as possible and control reportage of the closed door deliberations by the media. The media was to be fed information that would show that negotiations were on course and each team was to show how their side is winning.
In the PNU cottages were then strategists and now MPs Moses Kuria and Johnson Sakaja, Prof Peter Kagwanja, who was then based in Pretoria, MP Jimmy Angwenyi, city lawyers Stephen Njiru, Amos Makokha and John Katiku, Kibwana and the then Kanu organising secretary and former Siakago MP Justin Muturi, now Speaker of the National Assembly.
ODM had a thinner team at the talks that saw many long night meetings after the MPs had finished their deliberations. Other than Miguna, the ODM’s backroom team had only two other members, Caroli Omondi, who was the then PM’s principal administrative officer, and lawyer Mutakha Kangu.
The intrigues in Naivasha would reveal how much selfish interests were a threat to the national good of Kenya just two years after Kenyans hacked each other to death over a disputed election. New contentious issues arose in Naivasha most of them made up to distract opponents from their course. But it was clear, this had to do more than giving Kenya a new Constitution.
On Friday, January 8, 2010, the Parliamentary Select Committee on the Constitution received the Reviewed Harmonized Draft Constitution from the Committee of Experts which it deliberated on during its Retreat at the Great Rift Valley Lodge in Naivasha from 18-28 January 2010.
I was among the battery of journalists who spent their days and nights in the lake-side town of Naivasha as we followed the deliberations which threatened to abort severally. The PSC would after its retreat be accused of mutilating the draft Constitution to satisfy their political appetites though the CoE would trash some of the amendments made by the MPs.
When the PSC sat down in Naivasha to seek a deal on the draft constitution, three issues took up most of their time the executive, devolution and representation. The preoccupation with these issues was such that other important chapters like public finance were left out. The Naivasha talks were the cornerstone of the Constitution-making process with the coalition politics playing a big role.
It was also in Naivasha that the current Presidential system was agreed on. The two sides of the coalition government -PNU and ODM had already agreed to reject the hybrid system of government as presented by the CoE even before they went to Naivasha. The ODM MPs would in Naivasha however drop their quest for a parliamentary system and join PNU says that it in endorsing the presidential system with checks through Parliament.
A scrutiny of the PSCs proposals shows that the MPs ensured that they remained in control of government affairs by consolidating power in Parliament and especially the National Assembly. While they resolved that MPs should not be in Cabinet, the lawmakers also elevated the status of chairpersons of parliamentary committees.
The move was aimed a making MPs relevant in the operations of government, with the committees as key organs of checking the Executive. At the time, many of these committees did not have significant powers as they are only recognised by Parliamentary Standing Orders.
There was also the proposal to hold the presidential and parliamentary elections on two different days five months apart. The Parliamentary elections would be held in August and the Presidential in December, according to the PSC proposals. While in Naivasha, I learnt that the five-month period was designed to give room for the MPs to lobby for Cabinet positions if they lose in the Parliamentary elections. The period was also to give a presidential candidate time to seek support from the elected MPs some of whom may resign if he or she wins the presidency to join the Cabinet.
Initial proposals were that anyone who contests in an election should not be appointed to Cabinet . But this proposal was watered down when the MPs resolved that the president could appoint his Cabinet from Parliament but the appointees would have to resign from their seats. The clause barring those who have contested parliamentary elections from joining the Executive was eventually done away with. Effectively, politicians may still be in control of the executive as a reward for their loyalty.
Devolution was another opportunity that the MPs grabbed to ensure that they were still in control. Details of discussions at the Great Rift Valley Lodge indicate that the MPs rejected the creation of regions as they feared that heads of these units would wield more control of the grassroots. The initial proposal was that there should be regions but which would be only be planning units, effectively locking them out of financial control. But divisions over the number of regions led to their rejection.
When it came to the Senate, the MPs resolved to give it a lower status than the National Assembly. The role of the Senate was now limited to dealing with issues and interests relating to the devolved units. Common practice worldwide allows the Senate to be involved in national policy and legislative formulation. This is what had been proposed by the Committee of Experts in the revised draft that guided the PSCs discussions in Naivasha.
The debate on Devolution was described by the PSC members as emotive stretching for more than 10 hours in two days. Devolution was seen by the MPs as an effective way of checking the National Government especially in resource allocation but they are also said to have agreed that it should not take the authority of MPs politically. At the talks, ODM was forced to drop its quest for a three-tier system of national, regional and county governments as PNU insisted that the institutions created under the draft are too many and would be too costly to run.
The decision to create additional constituencies is also seen as part of the plot to consolidate power within Parliament though the argument brought to the fore was about equitable representation. It also one of the issues the MPs changed their decision about more than once. The feeling among MPs was that increasing the number of constituencies would also help balance power in the existing constituencies.
Splitting existing constituencies is seen as reducing competition and increasing ones chance for survival politically. There was also the argument that since Parliament will be approving most executive decisions there was need to have more MPs so that they are not easily manipulated.
In the transition chapter, the Naivasha team postponed the enactment of the new constitution to after the planned 2012 elections giving them time to finish their existing terms. The resolution in Naivasha was that only the parts dealing with elections and devolution should take effect immediately.
But the Constitutional fight between the Kibaki and Raila sides was just a tip of the iceberg. There was a larger problem stalking the Kibaki-Raila government the unresolved post-election violence crisis. No one had been brought to book for the crimes committed and thousands were still in camps inside their own country. The then ICC prosecutor Luis Moreno-Ocampo had the eyes on Kenya. This would later be a political game changer that would be a clear threat to the new Constitution.