Any Kenyan with a slightly long memory will remember that a theme of, especially, the early stage of the constitution making process was “the imperial presidency”. It was a favourite topic of (leader of the opposition) Kibaki.
The then Constitution and law gave the President tremendous powers (as head of government and of state), and prevented any effective control by Parliament – because any vote of no confidence would trigger a general election, something MPs avoid. The CKRC draft constitution, endorsed by Bomas and the Committee of Experts provided for a parliamentary system, with a head of government (prime minister) and a head of state (the president).
President and the legislature
The MPs in Naivasha amended the CoE’s draft to provide for a presidential system, different from the previous Kenyan model, and similar to the US, with its rather rigid “separation of powers”: the legislature makes law, the executive carries it out, and the courts interpret and apply it. It is also notable for its “checks and balances”, meaning that each branch of government has some control functions over one or both of the others. Though the US President is powerful, the President has to negotiate with Congress, and contend with a powerful court system committed to a vigorous upholding of the Constitution. Congress may be hostile to the President, as it is now, because the US has elections every two years for Congress, so that at least in the second half of a presidential term the President’s party may lose its majority. Judges hang on well beyond the date that in many countries (including Kenya) they would have to retire, in the hope that their successor will not be appointed by a president of the opposite persuasion.
The drafters of the US Constitution distrusted parties. They designed the Constitution so that the President often did not control Congress. The designers of our Constitution structured it so that the President most probably would control Parliament.
Perhaps the MPs in Naivasha who in a blink of an eye introduced a US presidential type system, did not really understand either US system or what they were doing. Our President is far more likely than the American President to control the legislature – both because of the timing of elections and because our MPs may lose their seats if they kick over the party traces.
The US Congress is not only less subservient to party control, it is better informed and better organised for making law than our Parliament.
The presidential veto
Like the US President, ours can send a law back to the legislature, with objections. Parliament can, if it can muster a two-thirds majority, insist on its original version. Or, unfortunately repass the law adopting the presidential objections. Unfortunately because it seems that Parliament does not have sufficient faith in its own decisions, it has not been able to insist on its own version, by voting for it by two-thirds. Tamely it has voted for the President’s suggestions to become law – suggestions that may have not been discussed at all, may not have been subject to public participation, or even may have been discussed and rejected by Parliament. So the President rather than Parliament is making the law. In the US the President will often signal his own views while the Bill is being debated. But if he vetoes it, it dies unless Congress can override the veto by a two-thirds vote. The unfortunate situation in Kenya is partly the fault of the constitution drafters, and partly of the lack of respect for Parliament on the part of the President and his advisers.
President and Judiciary
Our President has far less power over appointment of judges than the US President who nominates judges, but has to secure Congressional support of the nominee, a highly political process (as Obama will discover when he seeks to replace Justice Scalia). In Kenya the Constitution seeks to depoliticise the appointment process. Except for the Chief Justice and the Deputy Chief Justice, an independent Judicial Service Commission (JSC) decides on appointment of judges (though the formal appointment is made by the President). For the CJ or DCJ, the National Assembly approves – or may reject – the JSC’s nomination. If approved, the President must appoint the nominee. The recent law (passed by Parliament and approved by the President) saying that the JSC must put forward three names so the President has a choice, seems to be unconstitutional.
Other changes in the law giving the President more power over appointments have been either of doubtful constitutionality or at least reflecting a trend towards gathering more power in the President’s hands. The High Court held that it was not unconstitutional to give the President power to nominate the Inspector General of Police without the open process provided for in law passed soon after the Constitution – and in its spirit. The more recent similar change on the appointment of the Deputy Inspectors General is equally regrettable. And the new power of the President to remove the DIGs may be unconstitutional.
President and the Cabinet
This is an under-studied issue. The Cabinet is part of the Executive. The idea of having non-MPs as Cabinet Secretaries was partly to enable the appointment of well-qualified individuals. But it is not clear that qualifications to do a particular job have always been the basis of appointment. Reshuffles suggest otherwise. And Cabinet meetings seem to be held less often than once a month. This suggests a style of government that is far more focussed on the presidency than the executive as a whole, despite Article 129 which defines the National Executive as comprising “the President, Deputy President and the rest of the Cabinet”.
Intriguingly, remembering the “imperial presidency” debate, we now hear complaints that the President does not have enough power. This suggests the President and his advisors have not fully understood the Constitution and the concept of checks and balances. The President is not a mediaeval monarch. He is an elected head of government in a democratic, participatory system.
President’s defiance of the Constitution?
We have seen many hints that either the President does not understand the Constitution or that having read it he does not like it. His failure for some time to appoint High Court judges who had been nominated by the JSC was in direct contradiction to the Constitution. His earlier failure to forward names of those nominated as Commissioners of the National Commission of Human Rights was held in violation of the law by the High Court.
Recently he was reported as ordering that the route of a road in a county be changed. On what authority? What happened to public participation?
Press reports also suggest that President Kenyatta (and indeed President Kibaki before him) have “pardoned prisoners”. But under the Constitution, the President may only do this “in accordance with” the recommendation of the Advisory Committee on the Power of Mercy. In other words, the President has no choice in this matter. Media reports make no mention of the committee, so it is not clear whether correct procedures were followed.
Yes, the President is not intended to be a mediaeval monarch. He has only the power to do what the Constitution and the law allow him to do. The rule of law means that he is as bound by the law as everyone else. And he is bound by the Constitution not to allow his personal interest to conflict with his duty – but it hard to see how this was not violated by deals made with Ugandan President that will benefit the family dairy business.
Things are supposed to have changed since President Kenyatta senior “reigned”. But has our current executive realised this?
By JILL COTTRELL GHAI and YASH PAL GHAI
The authors are directors of the Katiba Institute