Deja Vu: 10 years later, Kenya still fighting over executive power
In 2010, Kenyans voted for a new Constitution and now they have been asked to amend it
In the recent past, there have been major realignments in the political circles and especially in Parliament. Some Members of Parliament have been kicked out of House Committee leadership or membership for apparently being disloyal to their party leadership. We have also seen the ruling party signing post-election agreements with various parties to make things easier for it in Parliament. But we have to ask ourselves why these agreements are being signed three years after the elections and less than two years before the next one?
Well, ten years ago in August, Kenyans voted for a new constitution that was termed as one of the most progressive pieces of legislation to exist. Locally and internationally, Kenyan was praised to ushering in a new dawn that would guide the country out of its dark past. Looking back, the praise must have been based on the fact that two years earlier Kenya was at the brink of self-destruction following the contested 2007 presidential election. Kenya was basically in what people would call a constitutional moment having failed to successfully complete the process in 2005.
7 years into the new constitution, Kenyans were having another divisive election which like in 2007 led to chaos, just on a smaller scale. The result of the chaos was the handshake between President Uhuru Kenyatta and opposition leader Raila Odinga, almost five months after the repeat presidential poll that Odinga boycotted.
This was followed by the Building Bridges Initiative whose first report appeared inadequate for the architects of the process and Kenyans are waiting for their new report. However, Kenyans really do not pay attention to detail until it is too late and decisions have been made for them.
It took one and a half years of a rigorous and charged exercise for Kenya to enact a new constitution in 2010. The Committee of Experts on Constitution then chaired by lawyer Nzamba Kitonga was appointed in March of 2009 with the referendum happening on August 4, 2010. The new constitution came into force on August 27 after the ‘Yes’ campaign garnered 68.9 per cent and the ‘No’ camp led by now deputy president William Ruto conceding defeat.
But before this, the draft constitution went through what many called mutilation in the hands of 26 Members of Parliament who through give and take came up with a compromise draft.
On January 8, 2010, the then Committee of Experts on the Constitution Review process published a report on public review of its harmonised draft. The 22-page document summarised Kenyans' review of the draft that shaped the revised draft the CoE gave to MPs before the controversial retreat in Naivasha.
At the time, the CoE said it had received 39,439 memoranda, with 25,907 coming from individuals. Most of the memoranda received expressed perspectives on the chapters CoE had originally identified as contentious.
These were chapters pertaining to the proposed system of government: The Executive and Legislature, Devolution and Transitional Clauses. After reviewing comments on the harmonised draft, CoE stuck to its proposed hybrid system, where a President and Prime Minister would share power.
This proposal was, however, trashed on the night of January 20 and the morning of January 21, 2010, by the Parliamentary Select Committee in a meeting in Naivasha. On January 20, 2010, the MPs spent the entire afternoon and the better part of that night trying to get consensus on the form the Executive should make.
Former President Mwai Kibaki's side was in favour of the Presidential system while Odinga's ODM side was pushing for the Parliamentary system. On the morning of January 21, 2010, the MPs continued with the debate and it was agreed that they would refine a presidential system.
ODM supporters were not happy with the decision but Odinga convinced them that he would win the Presidency and not share power has he had done in the Grand Coalition Government where he was Prime Minister.
At the referendum, Kenyans were asked to pass the document since it was 80 per cent perfect and the 20 per cent could be dealt with later. Part of the 20 per cent was the structure of the Executive but there has been no structured discussion on it until recently.
And so 10 years later, through the Building Bridges Initiative, we are where the country was just before the 26 MPs took the document for some sort of doctoring in Naivasha. And in some sense of Déjà vu, we are witnessing the same thing we saw then. Those with the greatest interest in amending the constitution, even though many Kenyans agree it has never been fully implemented, have aligned themselves to take up this process whose end result seems determined already.
The realignments Kenyans saw recently in Parliament are not aimed at ensuring that MPs carry out their mandate as required but to ensure that this job is executed as per the plan. The Executive structure has to be amended in the guise of sorting out the history of divisive elections in the country.
The truth is that in Kenya, elections have been used as an excuse to push for legal amendments that are aimed at capturing power.
Kenyans are back at talking about introducing the position of Prime Minister which Kenyans rejected last time. There is talk about introducing a new level of government between the counties and the national government – a proposal that was rejected 10 years ago. The country is even looking for a new way to enhance gender equality yet the current provisions of the Constitution have not been intentionally applied to ensure this happens.
If one looks at all the key proposals that have been made through the initial BBI report and what has been put out so far about the second one, they are all related to consolidation and sharing political power. Yet, Kenyans know that without the unnecessarily politicking, the implementation of the current Constitution to the letter would serve the country best.
Like in the 2009/10 process, the current process has been hijacked by the politicians and using Parliament, Kenyans will be forced to accept a revised constitution that has nothing to do with their interests. Even after the launch of the first report, the country was engaged in the political discussion of how to deal with divisive elections and not how to effectively have the country grow in between elections.
The current process is about political power and will eventually result in the expansion of the Executive. And since a referendum can go either way, the architects of this process must ensure that this expansion is done through Parliament. And this was the reason why those perceived to be against the BBI process, and most allied to William Ruto, have had to make space for those seen to support the process.
The final goal is to introduce the position of a Prime Minister who is appointed by the President with the approval of Parliament. Therefore this position is being put in the Constitution as a reward mechanism or bait for political competitors with which the newly elected President can use to maintain power and authority. By proposing that Kenya gets a Prime Minister who is the leader of government business, one wonders how the current position Majority Leader is inadequate. By proposing to reintroduce the Leader of the Opposition in Parliament position, one would wonder why the Constitution has the position of the Leader of Minority.
The President will be receiving the BBI report in the month of August. Kenyans will be asked to read it again but as a formality as the decision has already been made. The road was paved with the changes in Parliament and MPs will be used to rubberstamp the process.
No one can promise that the country won’t be back here in another 10 years seeking to undo what is being done today even without the full and adequate implementation of the current constitution or the revised one that we are about to get. At the end of it all, politicians will only accept a Constitution that will give them power even though it doesn't serve the other purposes.