Uhuru, Raila to entice Kenyans with a 'makeshift' Bomas draft
An expanded executive would be a blessing in disguise for Ruto; he could use it to form government as President or negotiate his way into power as Prime Minister
As Kenyans continue to battle the Covid-19 pandemic, there is another conversation that continues to dominate the news cycle this month. This has to do with the fact that the current Kenyan constitution came into force in August of 2010 and thus this its 10th anniversary. In line with this, Kenyans are eagerly awaiting the Building Bridges Initiative report which may fundamentally alter the country's political set up. The process arose from the handshake between President Uhuru Kenyatta and Opposition Leader Raila Odinga on March 8, 2018, which was necessitated by a divisive 2017 presidential elections.
While the report has been ready for over a month now, the President is yet to set a date for its unveiling after sending the task force back to the drawing board. During the launch of the first report on November 27, 2019, there were concerns within the circles of the architects of the process that it did not meet their aspirations. The second report is, however, generally acceptable when you talk to those in the corridors of power. And the recent comments by Jubilee Party Vice-Chair David Murathe backed by the Secretary-General of Central Organisation of Trade Unions Francis Atwoli, are laying the ground for the report and the anticipated legal changes.
So what is expected with the BBI report and why does it matter that Murathe and Atwoli have already started talking of an Odinga presidency? It is not lost to many that the two had a different project in 2019 - Amani National Congress (ANC) leader and former Vice-President Musalia Mudavadi. Murathe and Atwoli have dominated the news in the last week over their declaration but this has to be viewed from the BBI process and the quest to block Deputy President William Ruto from succeeding Uhuru who he supported at the 2013 and the 2017 (twice) polls.
The two elections were highly charged and the presidential results ended up being contested at the Supreme Court with the 2017 one being nullified. This nullification led to a bitter contest with the Raila leading the Opposition in boycotting the repeat election giving Uhuru a clear win. But Raila's supporters ended up in the streets leading to loss of lives and damage to property until his handshake with Uhuru happened.
Insiders indicate that the much-anticipated BBI report will most expand the Executive and create a Prime Minister's office with executive powers. The proposal which appears to sit well with Uhuru and Raila is said to structure the Executive in a similar manner to that in the Bomas Draft. During the failed quest for a new constitution after the 2002 elections, the Constitution of Kenya Review Commission (CKRC) came up with The Draft Constitution of Kenya, 2004 which was endorsed by the National Constitution Conference held at the Bomas of Kenya, hence the term Bomas Draft. The draft was later mutilated by the political class and the executive evolving to the Kilifi Draft and then to Wako and ended up being rejected by Kenyans at a referendum held on November 21, 2005. The Bomas Draft has been a point of reference for many who term it the most progressive constitution that Kenya never got.
Borrowing from the Bomas Draft, it means that Kenyans are likely to see a change of the Constitution with a President, Deputy President, Prime Minister and Cabinet Ministers forming the National Executive. There would also be two Deputy Prime Ministers and reintroduction of Assistant Ministers to be referred to as Deputy Ministers. And unlike the previous BBI report, the one Kenyans are awaiting would give the Prime Minister some executive authority.
During the handshake and every other time that Uhuru has talked about the initiative, he has indicated that his desire is to increase inclusivity. These changes would also satisfy Raila's desire to have the Kenyan Constitution mirror the Bomas Draft - something he has pushed for in the last 15 years.
The Bomas Draft had proposed the office of the President who is the Head of State, Commander in Chief and Chairperson of the National Security Council. In that draft, the Prime Minister would be appointed by the President from among MPs who would, in turn, nominate two deputies for appointment by the Head of State. The President would also appoint 15 to 20 ministers who would be nominated by the Prime Minister. The ministers were to come from in and out of Parliament. The only difference at the moment is that there are those who are proposing the Prime Minister should be elected by Parliament.
In the Bomas Draft, the President was to appoint the MP who is the leader of the largest party or coalition in the National Assembly. The MPs would then vote, with the appointment standing if 50 per cent of the House approves. As head of government, the Prime Minister would coordinate the work of all ministries and be answerable to Parliament. The Prime Minister would also chair Cabinet meetings and will have the responsibility of making appointments to public offices and reassigning duties.
The import of these proposals is that an elected President can easily deal with possible post-election fallout through the use of the Prime Minister position. The proposal allows for negotiated democracy making it easy to navigate divisive elections like has happened in the last two polls. This window would easily see an elected president, especially one who wins with a small margin, invite his opponents into government through post-election coalitions.
The proposal to expand the executive creating positions which an elected president can use to form governments of national unity is good for close elections but the handshake between Uhuru and Raila has proven that it is one way of muzzling the Opposition. An effective Opposition is critical for a country like Kenya where the Executive operates in excesses bordering the abuse of office.
So one may ask how the above explanation relates to the comments made by Murathe and Atwoli. The two self-declared powerbrokers are privy to the details of the proposals that have been made to change the architecture of the Constitution. And while like many others around Uhuru would not want Raila to be an all-powerful President, his history of contesting all elections that he loses would be tamed with the proposals being made. He would be a less powerful President with the system installing its own as the Prime Minister. This would also go a long way in cementing Uhuru's legacy as the President who gave Kenyans a system that allows for inclusivity.
And so while the BBI process was anchored on various issues, the key agenda is to ensure that there is an Executive structure that allows a newly elected President to use the Constitution to nip Opposition at the bud immediately after taking over. The agenda, it would appear, is about ensuring that the political class has enough spoils of war to share after bitterly contested elections.
Where does this leave William Ruto? One may ask.
Like Raila, William Ruto has been laying the ground for decades to be Kenya's President at one point. His support for Uhuru in 2013 and 2017 was his shortcut to the Presidency but this path now appears dimmed. Though the President has not declared that he will not support his deputy's presidential bid, Ruto is not taking any chances and has already charted the path that he believes will see him take over. Those close to both Uhuru and Ruto say that their political marriage is broken but they are far from a divorce. Many say that Uhuru never commits to saying whether he has dumped Ruto and only asks those seeking an answer, "Have you heard me declare support for anyone else?" It is a response that can be interpreted in many ways politically and only time will tell.
And though they say a day is a long time in politics, the much-awaited BBI report has already created three key political outfits. There is Mudavadi who has refused to be drawn into the Uhuru matrix which has two components - Raila who is being promised support by his ‘handshake brother’ and Ruto whose endorsement from the President would make or break him. Uhuru's endorsement comes with the populous Mt Kenya voting bloc, on paper, and that is what the three are eyeing. But being part of the current Presidency, Ruto would probably have more to lose if Uhuru endorsed him as he would have to shoulder the Jubilee Administration failures as he seeks the voters' mandate.
However, whichever way the proposed changes to the Constitution go, Ruto can fit in by either winning the Presidency or becoming that villain who has to be brought into government as the Prime Minister.