Deja Vu? Raila dropped PM quest in 2010 hoping to be President
In Naivasha, PNU made the Presidency attractive to ODM leading to the scrapping of the COE's hybrid system
There are times when working as a journalist feels like one is living in an infinite loop. Any Kenyan journalist who has covered politics and current affairs in Kenya in the last 15 years could feel like they have in the past covered what is happening today. The only difference is that we are not sure if the result this time will be similar to what we have witnessed before. This week, 11 years ago, we were very sure that ODM leader Raila Odinga would have his way and have the Prime Minister position anchored in the Constitution. This was never to happen.
On January 17, 2010, I packed my bags early, locked the door to my one-bedroom house located on the sixth floor of one of the newer apartment blocks in Pangani and headed to Nation Centre. In the newsroom, I had a quick debrief with the News Editor on duty and alongside my then colleague, photographer Hezron Njoroge, head to the ground floor to board our ride. We were headed to Naivasha with the first stop being at the Great Rift Valley Lodge before heading back to the town to seek accommodation in one of the many hotels. We would spend the next two week in this lakeside town - covering news by the day at the Great Rift Valley Lodge and utilising our per diems in the Naivasha nightlife alongside other journalists.
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 January 18 to 28, 2010. I was among the battery of journalists who spent their days and nights in the lakeside town of Naivasha as we followed the deliberations, which threatened to abort severally. Our work was not easy as these meetings were the closed door and we relied a lot on our contacts inside the plenary as well as their strategy teams holed up in various villas in the resort.
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.
Some background. The 2009-2010 Constitution review process in Kenya arose from the ceasefire document signed by the then President Mwai Kibaki and opposition leader Raila Odinga. As a result, they formed the Grand Coalition Government in which Raila became the Prime Minister. As part of the ceasefire, a Committee of Experts was selected to review the Constitution but their work would also be revised by the political class which was on January 17, 2010 gathering in Naivasha. Our mission that day was as simple as just getting arrival shots and quotes as well as gauge the mood with the real work kicking off the following day.
When we got to Naivasha, and after making a few calls, I gathered that the two sides in the Grand Coalition had already sent in foot soldiers the previous week. Both sides had teams of technocrats who were handling technical matters on their behalf and doing research. They were housed in different parts of the resort with little to zero contact with other people around, and especially journalists. The MPs would be seen consulting these technical teams often during breaks and also on phone.
ODM had then Prime Minister Raila Odinga’s adviser on coalition matters Miguna Miguna, the PM’s principal administrative officer Caroli Omondi, and lawyer Mutakha Kangu. The Kibaki side had then PNU spokesperson Moses Kuria (now Gatundu South MP), academician Peter Kagwanja, MP Jimmy Angwenyi, city lawyers Stephen Njiru, Amos Makokha and John Katiku, Kibaki’s adviser on coalition matters Kivutha Kibwana and then Kanu organising secretary and former Siakago MP Justin Muturi (now Speaker of the National Assembly). Then Deputy Prime Minister Uhuru Kenyatta’s aides Njee Muturi (now Solicitor General) and Jomo Gecaga (now the President’s Private Secretary) we also in Naivasha for most of the period.
Just to go back a bit, in the last quarter of 2009, and Kenyans were now getting used to having two centres of powers with unending wrangles in the grand coalition government. At this time, the debate was majorly on how the executive should be shaped in the new Constitution as the Committee of Experts on the review process prepared to publish the harmonized draft on November 17, 2009. On this particular day, September 3, 2009, all eyes were on a political parties retreat on at the Leisure lodge in the South Coast. It was not one of those high-profile closed-door meetings that journalists were kept away from. But there were two people who appeared unwanted at the meeting – President Kibaki’s adviser on constitutional matters Kivutha Kibwana and his equal at PM Odinga’s office Miguna Miguna.
It was Miguna who made, through very candid observation, the environment hostile for him and Kibwana when he stood up and described the then government system where the President is the Head of State and Commander-in-Chief as a “mongrel”. “This is a mongrel system and it is important to separate the powers of the President from those of the PM.” Miguna told the politicians giving a clear indication of his and to a large extent his boss’ preference.
Kibwana had not said anything at the time but would end up being a subject of discussion with PNU representative George Nyamweya interrupting him and arguing that the forum was not about two individuals but about the constitution-making process. Nyamweya said that he did not understand what Miguna and Kibwana were doing at a political parties’ meeting adding that the discussions were not centred on the President and the PM. “We are here as political leaders and we should be allowed to represent the views of the parties.”
I managed to pull Miguna aside as we had tea. And here he defended the presence Kibwana and himself saying it was to underline the Executive’s commitment and goodwill to the review process. He even went ahead to say that the “politicians inside the meeting” should have marked his words when he earlier told them that “Constitution-making is a political process.” He added; “I was invited here officially and I do not see what the problem is. The PM and the president are very important stakeholders and Kenyans ought to know what they are thinking.”
Kibwana would also later defend his presence at plenary saying; “We are not trying to influence you (CoE) positively or negatively”. A few weeks earlier, I had obtained some letters by the two criticizing CoE’s work and they would later be accused of interfering in the review process even as they engaged in their own war of words. The two represented the ideological differences between the two principals as it would later emerge. Their presentations both in the letters to the CoE and in various forums were the real PNU/Kibaki and ODM/Raila stands and they both appeared to have clear briefs from their bosses.
A few weeks later, now Makueni Governor Kivutha Kibwana invited me to his office at Harambee House for a chat and at length explained the frustrations that he had with the “President’s 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, then Gichugu MP 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.
Fast forward to 2010, the intrigues in Naivasha would reveal how political 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.
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 in endorsing the presidential system with checks through Parliament.
A scrutiny of the PSC’s 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 PSC’s 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 one’s chance for survival politically. There was also the argument that since Parliament will be approving most executive decisions there was a 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 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.
As the current debate on the BBI rages on, one is only left to guess whether the ODM side will drop the quest for a prime minister if Raila believes that he can form the next government as president.