Should constitutional system of the Executive be amended?

The first politician who argued emphatically to the Constitution of Kenya Review Commission for abolition of the executive presidency (“imperial presidency” as he called it) was Mwai Kibaki, then Leader of the Opposition.

I was pleased to hear his change of heart, for he had had some role in the abolition of the parliamentary system by Jomo Kenyatta within months after independence — and the erection of the executive presidency. For years, Kibaki was a senior member of the government under those imperial presidents, Jomo and then Moi.

The CKRC was broadly in favour of the parliamentary system, which was endorsed by the Bomas National Constitutional Conference. It included CKRC’s inclusion of a President with a significant role in keeping an eye on the government in order to maintain the Constitution, but no in policy making.

But when Kibaki won the 2002 elections he reverted to support of the executive presidency (even though his main partner Raila had always been strongly supportive of the parliamentary).

The settlement brokered by the Eminent African Leaders, led by Kofi Annan, after the tragic fiasco of the 2007 elections led to the establishment of the office of “Prime Minister” held by Raila Odinga. This was not a parliamentary system: That would have had a head of government (Prime Minister) who had the support of the majority of MPs, and a President with limited powers, probably not elected by the people. Instead, it was a power sharing government: A President and a Prime Minister, each convinced he had won the presidential election, with respective roles not clearly defined, and too many ministers because of the need to satisfy “both sides”. It survived five years, it kept the peace, but it did not endear the idea of a Prime Minister to Kenyans.

However, the Eminent Africans also proposed that Kenya re-consider a parliamentary system. The Committee of Experts adopted the CKRC parliamentary system. However, when the CoE met a committee of politicians (including members of Raila’s party), the latter unanimously voted for an executive presidency — because, as Ghai was told, each political leader expected to win the election and wanted to do so as President. The CoE gave in to the politicians and the 2010 Constitution ended being an executive presidency, without any real safeguards against the return of the imperial presidency. What became clear was that politicians were driven, yet again, by their self-interest. Though I lobbied hard for the approval of the CoE’s draft constitution, despite its executive presidency (as being very much better than our old constitution), there was considerable regret that we were keeping the executive system, which had done so much harm to our country under Jomo, Moi and Kibaki.

WHAT NOW?

Raila has now proposed again major changes in the Constitution, including to a parliamentary system. They are not necessarily new coming from him. His Okoa Kenya movement of 2014 proposed to introduce this and other changes related to devolution by popular initiative. To start the process a million voters have to support the initiative. The IEBC, which has to scrutinise the necessary number of voters, was not convinced that the requisite number had signed the petition —and Raila seems not to have made the effort to secure the necessary number of voters.

That notwithstanding, it is clear that Raila’s commitment to constitutional reform goes back a long time and is not driven by opportunism of the moment, as seems the position of some other politicians.

There seems to be two positions regarding amendments. The first is to more centred in civil society, by Ufungumano, which supported Bomas, with the support of some civil society leaders. Their focus seems to be on peace and inclusion.

A number of politicians have also raised issues of reform, but along different lines or from different motives. Their concern seems to relate to their interests in politics — who will gain state office, particularly the presidency. The focus seems to be on creating new offices of one prime minister and several assistants, and sometimes to have one President and two Deputies.

The media tend to pander to the second group, despite some efforts by columnists to get a serious debate going on the need for and nature of change.  Journalists and commentators discuss whether Ruto’s position has changed to suit his prospects of presidency (he professed to support a parliamentary system during Bomas, and opposed the new Constitution in 2010).  Others think that change would be welcome or terrifying because Uhuru would get another term, though under a new title. Raila’s motives are similarly analysed: His last chance to become President? But would be want to be President in a parliamentary system with very few, mostly symbolic, nation-uniting, powers?

Many people who would have preferred the Bomas version are opposed to reform now because they are very worried that once the amendment game starts, politicians would bring in further provisions to enhance their own interests, and diminish safeguards of various types.  There is great deal of suspicion that the Constitution would lose its characteristics of the people’s constitution which are its strengths. Many people fear that there is the beginning of the restructuring of top positions among particular politicians. It is better, in their view, to keep the Constitution as it is.

WHAT IS NEEDED?

The constitution making process of about 1990 to 2010 was largely people-driven and dominated, despite the last minute, mostly retrogressive, changes by MPs. The big risk is that the system of amendment through Parliament will be politician-driven.

It is true that people talk of “referendum”, almost as though it is the same thing as constitutional amendment. But not all changes to the Constitution need a referendum at all, though fundamental ones do.  (Incidentally, if MPs pass an amendment to move elections to December, this seems to need a referendum because it affects the President’s term.) If introduction of amendments is through Parliament, not one million citizens’ signatures, the changes would be first made by Parliament (two-thirds of each House). Who would then ensure there was adequate public understanding and debate? The MPs? Surely not.

If the debate remains as now about personalities and their positions, will people vote in a referendum on any other issue? Where has people’s sovereignty gone? Where the national interest?

We need a serious analysis of how the Constitution is working, its strength and weaknesses. We need careful study of what would change if amendments are made. Would the nature of our parties and politics mean that little really changed? If the supposed checks and balances between Parliament and Executive do not work properly now, would they work any better if the head of government (Prime Minister) was a Member of Parliament and needed its support?

Change should not take place just to satisfy the ambitions of individuals. Equally, sensible change should not be resisted simply because certain individuals might benefit.

We also need careful and informed analysis of what a parliamentary system is. It is not, usually, a power-sharing system. There are winners and losers. The 2008-13 arrangement, as said earlier, was not a typical parliamentary system. Even if there are far more jobs for the boys (and it is mostly boys) they would usually be filled by the winners’ side. The disappointed, perhaps cheated, losers would still be excluded.

 

Authors are Directors of Katiba Institute

By YASH GHAI and JILL COTTRELL GHAI