Kenya began its independent life with a Constitution that established a multiparty parliamentary system with the leader of the majority party as the head of the national government, there also being regional governments with their own structures.
The sharing of state power was the major theme. As is well known, Jomo Kenyatta got rid of both parliamentary government and regions, and the administrative independence of the public service, within two years of Independence, heralding a long era of corruption and authoritarianism.
Since then, the Executive has dominated the Legislature. That system led in the 1990s towards the search for a democratic and fair system, culminating in the adoption of a new Constitution in 2010. Recently, some people have argued its provisions on the system of government have not fully achieved the objectives of democracy, being based on an executive presidency, rather than the parliamentary system.
SYSTEM OF GOVERNMENT
The inspiration of the current Constitution is the Bomas version, though with two key departures: A fundamental change in the system of government to a presidential from a parliamentary, and significant changes in the system of devolution. Here, the focus is the system of government. Like much of the Bomas draft, having a parliamentary system was a major departure from the previous system.
In discussions on constitutional reform from the 1990s, there was little discussion of the Executive, except that it should be elected and accountable. Without much controversy, the Constitution of Kenya Review Commission agreed on a parliamentary system of government.
In Bomas a minority wanted to retain the old presidential system. Ironically, Mwai Kibaki, having attacked the old system as “imperial presidency”, now changed his mind after he won the 2002 election. His team, including Kiraitu Murungi, realising they were in a minority on this, boycotted Bomas. This walkout ensured the parliamentary system was adopted by Bomas, especially as it had the support of Raila Odinga.
The political parties’ adoption of the presidential instead of the parliamentary system was by far the biggest deviation in the 2010 Constitution from earlier drafts. On this issue, there is some divergence between the preferences of political leaders and the public. This issue has risen again among politicians.
Some argue the presidential system has polarised the people, primarily ethnically. Others argue the system, as it has worked here, is inherently undemocratic, with little accountability of the Executive — driven by the partiality, corruption, and the often brutal style of governance. It is in this context that the issue is discussed now.
Although Bomas opted for the parliamentary system, the role of the President was different from that normally found role in a parliamentary system. The president was to be elected directly by the people.
The President was given significant powers to maintain a balance in the constitutional order (which would have involved the President in political debates). A primary duty of the President was as a symbol of national unity (without affinity with any political party), with responsibility to safeguard the sovereignty of the country, promote and respect the diversity of the people and communities, protect human rights and safeguard the Constitution. She had certain powers designed to counterbalance those of the Prime Minister, but had no role in policy or day-to-day government.
The President was to address the opening of each newly elected Parliament, and in consultation with the Prime Minister, to report to Parliament (thus to the people), on all the measures taken to achieve the realisation of national values and goals.
There are some other functions that required the approval of the Prime Minister/Cabinet and yet others which require joint action (for example, international relations, securing for courts and other independent bodies “their independence, impartiality, dignity, accessibility and effectiveness as contemplated in the Constitution”.) The President was to ensure that public participation requirements concerning the enactment of legislation had been observed by Parliament.
The President would appoint the leader of the largest party in the National Assembly as Prime Minister. If she were not acceptable by the House, the President would propose the leader of the second largest party, then his/her own nominee, and if that also failed, the Parliament would have forwarded its own candidate. If the Assembly could not agree on any candidate, there would have been a fresh election.
The Prime minister, as head of government, could not be dismissed by the President. But the President, or any MP with the support of one-third of the members, could propose the removal of the Prime Minister. Actual removal of the Prime Minister required 50 per cent of the votes in support.
The Prime Minister presided over the Cabinet (which was formally appointed by the President on the recommendation of the Prime Minister from among parliamentarians) and coordinated the work of ministries and preparation of legislation. The Prime Minister was to be responsible to Parliament. Ministers were in charge of their ministries and could be removed either by a vote of no-confidence by the Assembly or by the Prime Minister.
COMPARING WITH PRESENT CONSTITUTION
The President under the 2010 Constitution is elected directly by the people, and is both the head of state and government. He is also the Commander-in-Chief, while in Bomas that post was held not by the Prime Minister but the President. It would have been a formal role with no command powers. History repeats itself: The President now combines the roles of the President and Prime Minister in Bomas.
In the hurried shift from parliamentary to presidential system, some powers suitable for a largely formal President, a symbol of unity, even a promoter of unity and of respect for the diversity of the people and communities of Kenya were retained. These roles would be easier for a non-political President, especially in a country where there is such massive reliance on ethnicity.
In several respects the current elected, party politician President is not suited for these supposedly unifying functions assigned to him/her. The President is not an MP.
The debate/discussion between the head of government and legislators, considered in some countries an important element of democracy and accountability of the Executive, is hard to achieve.
We have no parliamentary question time for the President. Far from being protector of human rights, there has been evidence that Uhuru Kenyatta or his regime has violated human rights. A responsibility that Bomas envisaged for the President is unlikely to be fulfilled.
Another weakness of the Constitution is that the Deputy President becomes the President automatically if the President dies or otherwise becomes disqualified. This is a serious democratic deficit: The people did not vote for the deputy to be President.
In the Bomas system there would be constant accountability of the Prime Minister and her colleagues to the legislature. The current Constitution is somewhat better than some presidential systems; it is essentially the American system.
The President can appoint ministers (‘Cabinet Secretaries’) only with the approval of the National Assembly. In the US, the approval is that of the Senate: Supposedly older and wiser than the other House. And the National Assembly can secure the removal of a Cabinet Secretary only for violation of the Constitution or other ‘gross’ misconduct rather than fundamental differences of policy.
CSs are required to provide Parliament with “full and regular reports concerning matters under their control” and to answer questions at the request of the relevant committee — rather than the full House. Their real accountability is to the President.
In all these processes, the accountability of the President to the Legislature is rather limited — a weakness aggravated due to the awe with which Kenyans tend to regard the holder of the presidency.
A parliamentary system is, especially, critical for a society as divided as we are and in which the elite of one or two ethnic groups tend to dominate the benefits of the state — of which Kenya with the dominance of only two communities since independence is an outstanding example.
by Yash Ghai
The author is a director of Katiba Institute. Jill Ghai also assisted him in preparing it.