P. Domo
28 November 2009
opinion
Nairobi — The harmonised draft constitution stands accused of creating two centres of power. It is guilty as charged. However, this is not intrinsically a conflict because the draft has proceeded to elaborate the distinct mandates and powers of the respective centres and how these should be exercised.
This does not mean that there will be no conflict or attempt by some overreaching person to usurp the powers that are not theirs; the nature and character of politics shows that this will happen.
But then, this overreaching has also occurred within the paradigm of the imperial presidency as we know it today and what we will need to put premium on and lots of energy in is to ensure that the prescribed political power dispute resolution mechanisms will work independently, impartially and competently to prevent any damaging conflagration.
Imperial presidency
It is these same institutions that were so eviscerated by the imperial presidency that they could not mediate Kenya's post-election dispute necessitating the assistance of the Panel of Eminent African Personalities led by Kofi Annan.
Outside the question of creating two centres of power, there is one other question that dominates the critique of the radical proposals of the draft with regard to power sharing. This question represents an incredulous psyche inured in Kenya's model of the big man.
It goes something like: "Why would someone go around the country, campaign hard, succeed in garnering the majority support in the country as well as 25 per cent support in a majority of the regions only to cede power to an "unelected" prime minister?"
Here are three reasons: first, because it is time to finally put the interests of Kenya - that is, the national interest -- in its rightful place before any and all individuals. The only qualification to this statement is that this submergence of individual interests must comply with the strictures of the Bill of Rights.
For too long, single individuals in the name of Kenya's respective post-independent presidents and the little cabals around them (Kiambu Mafia, Rift Valley Mafia, Mt Kenya Mafia ) have held this country hostage for their own interests.
Country's wellbeing
So much so that one soap opera-style day in Kasarani in 2002 -- which former Kanu parrot JJ Kamotho would melancholically refer to as kichinjio (slaughterhouse) when the intrigues of presidential succession hit high gear and it was obvious he would be a casualty, Prof George Saitoti, then Kenya's and Kanu vice-president, would remark something to the effect: "There comes a time when the wellbeing of a country supercedes that of an individual..."
An analysis of this statement reveals that the national leadership has never thought that the wellbeing of the country should always trump the interests of an individual; this should just happen "sometimes." The second reason for sharing power is that the presidency provided for in the harmonised draft constitution of Kenya is not ceremonial.
Every time someone speaks of a "ceremonial" presidency as if what is left of presidential powers is an empty shell, it echoes the loud ignorance of an empty debe. These powers were highlighted in this column last week and there is no need to belabour the point.
Third, there is the fact that the prime minister, as provided for in the draft, is not unelected: in fact, far from it. Those making the patently slanted suggestions that a future prime minister is coming to power through the "back door" need illustrated manuals of the provisions of this draft. Or maybe they just need to read, read and read again.
The draft provides for a prime minister who is clearly head of government (as opposed to the current position where the de jure head of government is the President) but, de facto, this power is exercised by an unelected head of the public service. This is why the relationship between the current prime minister and his ODM party and the powerful current head of Kenya's civil service, Mr Francis Muthaura, cannot be described as cordial or civil.
Under the draft, however, to be the prime minister, one (not necessarily Mr Raila Odinga) would need to be leading the largest political party or coalition of parties represented in the National Assembly or, if this person does not command the confidence of the National Assembly, leader of the second largest political party or coalition of parties represented in the National Assembly.
If these first two people cannot summon the confidence of the National Assembly, then the State President shall propose to the National Assembly a person who is able to command their confidence.
Coalition of parties
The plain English language translation of all this: a future prime minister will need to, first of all, work extremely hard to become the head of a party participating in National Assembly elections and then work extremely hard to ensure that their party wins a majority share of National Assembly seats or heads the coalition of parties that garners this share.
Finally, that individual has to retain the confidence of the National Assembly. It is important to note that the contestation for this leadership of government is confined to the National Assembly and not for the entire Parliament -- Parliament being the National Assembly and the Senate combined.
The long and the short of it is that the individual who becomes prime minister has a national mandate based on all the consensus he or she must facilitate to ensure majority leadership in the National Assembly. How, then, could this be the back door? The answer to this question lies, almost entirely, on Kenya's very unfortunate history of skewed representation.
From constituency boundary gerrymandering to the patronage politics that characterises the country's political parties, the ideals of adequate and effective representation have been as traumatised by this experience as the country was shaken by post-election violence.
Unfortunately, this is an issue which the harmonised draft constitution does not squarely and effectively address. Happily, it can be agreeably remedied. The draft provides for at least three sites of representation: the national level (in the National Assembly and Senate), the regional level (analogous to the current provinces) and the county level (analogous to districts although much reduced in number from the current proliferation that resulted from the Kibaki administration's ad hoc and willy nilly creation of districts).
It is outside our ambit for the time being to consider the roles and mandates of these respective levels: we are more concerned here with how these sites deal with representation. The system of representation at the national level espoused by the draft, for example, through the provisions of Article 126 is majoritarian -- except that it also provides a quota for women elected at county level, people with disabilities, and members from marginalised communities.
The representation at regional level (including for the mayor and deputy mayor of Nairobi which shall be by universal suffrage) is also majoritarian but there is a small window for proportional representation at county level found in Article 222 (1). Majoritarian (or plurality or first-past-the post) simply means that the person who is first to cross the finish line is the only winner; there is no consideration whatever of the performance of any of the other candidates. It is akin to having Usain Bolt, as the winner of a race of 100 metres, as the only competitor on the podium - second (silver and third (bronze) positions for instance count for naught.
Prof Amukowa Anangwe, in this re-reincarnation as a scholar in political science, in a media article this week ably ventilated on the problem with this configuration and provides three incontestable arguments against it. First, it results in minority governments carrying the day (the victories of former President Moi in 1992 and 1997) being clearly illustrative.
Second, the majoritarian system reinforces ethnic polarisation in addition to distributing seats illogically and unequally. Third, because of its exclusive nature, this system only fuels perceptions of alienation, exclusion and marginalisation among the losers. The contention here is that this method - as provided for in the draft -- does not address the skewed representation matrix found in Kenya and its politically conflagrant repercussions. To do so, there is a need to either re-draw the current constituency boundaries so as to make as equitable (as opposed to equal) as possible constituency numbers.
The writer has worked in various roles and capacities in the democratic governance sector for the last two decades.
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