Kenya: BBI - How President Will Ignore MPs to Appoint Prime Minister

29 October 2020

The introduction of a prime minister and two deputies will entrench pre-election coalitions but not necessarily cure the winner-take-all challenge as the winning alliance will seize all the posts, constitutional experts and analysts argue.

The Building Bridges Initiative (BBI) recommends an amendment to the constitution to create the new posts in the executive, whose holders are MPs appointed by the president from the party or coalition of parties with the majority in the National Assembly.

Critics point out the BBI proposals offer the president a loophole to appoint a prime minister of his choice without reference to Parliament.

According to the BBI's draft Constitutional (Amendment) Bill 2022, should the president's nominee for PM - the member of the National Assembly who is the leader of the majority party or coalition of parties in the National Assembly - fail to secure parliamentary approval, the House will consider another nominee.

The largest party or coalition of parties shall within seven days of rejection of a nominee designate another member to be the party leader in the National Assembly but should this one too fail to secure support of majority of MPs, the president makes a unilateral appointment.

"The President shall appoint a member who, in the President's opinion, is able to command the confidence of the National Assembly," reads the draft Bill which essentially gives the President a free hand to make the appointment.

A fallacy

Constitutional lawyer Bobby Mkangi, who was a member of the Committee of Experts that wrote the 2010 constitution, says it's a fallacy to expect an election not to have losers, adding the new arrangement only reinforces coalition making prior to polls.

Mr Mkangi argues the proposals on PM and two deputies strengthen pre-election coalitions but the winning alliance will still scoop all the positions as reflected in their pre-election coalition agreement.

"Any coalition or alliance will want to win an election, once they win they have powers of running the government. It is a fallacy that we can have an election which cannot produce a winner and a loser," he argues.

"Just by adding a few positions without a formula saying that we reserve those positions for either women or regions, and instead leaving it to the President or an alliance does not cure it (winner-take-all)," Mr Mkanga says.

It's the same argument Deputy President William Ruto advanced on Monday during the official launch of the BBI report at the Bomas of Kenya when he wondered how the proposal would ensure inclusivity while the offices would be filled by presidential appointees from the winning party or coalition of parties.

"The President will appoint the PM and the two deputies from the winning coalition. And then we will have the runners up being the leader of the opposition. The question I am asking myself is, have we sorted out the winner-takes-all question?" Ruto posed.

Not unique

According to political analyst Javas Bigambo, the dilemma of winner-take-all is not unique to Kenya as it affects even progressive democracies, and the designation of the runners up in the presidential vote as Leader of the Official Opposition doesn't necessarily settle it either.

"Accommodating the second runner up in a general election does not necessarily provide for inclusive governance. If that is perceived as a challenge at the national level in a presidential contest, what about at the county level?" Mr Bigambo poses.

"So BBI report will not provide the ultimate cure for the winner-take-all complaints. It is only attempting to make presidential contests less polarizing and entrenching pre-election coalitions in Kenya's democracy," Mr Bigambo suggests.

This will require parties to a coalition to be more respectful to each other, as withdrawal of support or bickering could expose the premier to removal through impeachment.

The President remains the Head of State and government.

Another concern is that the structure proposed by the BBI gives the president the leeway to hold the Parliament hostage as it's not purely a parliamentary system of government.

Mr Mkangi explains a parliamentary system is where the executive is elected by parliament, executive power assigned to an MP named the Prime Minister who is often the head of the party with majority of parliamentarians.

The prime minister then nominates senior government officials, including members of cabinet, who are directly accountable to parliament.

This is the kind of prime minister the CoE had initially suggested, Mr Mkangi explains, adding the idea was to divide power at the top, with the president the Head of State and Premier Head of government.

"The BBI recommendations do not make the Prime Minister Head of government. The President remains the Head of State and government. The Prime Minister is simply a leader of government business in Parliament and supervises ministers appointed by the President and chairs cabinet," he argues.

And he reckons this structure, if approved, will make the president more powerful as "it will open a window for the executive to be in Parliament and the President will run it much easier than currently."

National Assembly

If the report sails through, members of the cabinet, led by a PM and two deputies, will be drawn from the National Assembly.

Political analyst Edward Kisang'ani opines that as long as the leader of official opposition is at the mercy of the government their role will merely be symbolic without the teeth to push those in power.

"There are no proper powers of the leader of opposition to exercise independence when you have through the constitution handed over parliament to be controlled by executive. He/she will just be making noise when the President controls resources and power," argues Prof Kisang'ani.

"In curing the winner-take-all, the leader of opposition has to be empowered to an extent of even forcing another election to be held," he argues.

The holder of the office shall be the person who receives the second-highest number of votes in a presidential election.

His or her party or coalition of parties, however, must garner at least 25 per cent of all seats in the National Assembly.

The person serving as leader of opposition will be third in precedence in the National Assembly, after the Speaker and PM.

The person will also appoint a Shadow Cabinet to articulate alternative policies.

Shadow cabinet

In a shadow Cabinet arrangement, the leader of opposition appoints people to specific areas of policy to challenge their counterparts in government.

Mr Mkangi argues that as long as it is the executive which will be financing the office of the Leader of the Official Opposition, there is likelihood of the president frustrating the holder.

"Introducing the position of Leader of the Official Opposition is most welcome and helps to retain the political relevance of whoever will not win the election of president," argues Mr Zephania Yego, a constitutional lawyer.

For Prof Egara Kabaji, a political analyst, the office of opposition leader symbolically gives the supporters of the runners-up in the presidential election a feeling that they are in government.

Turkana North MP Christopher Nakileau says the expanded executive will allow politicians to raid their opponents' camps to form a formidable team ahead of the 2022 polls.

"It will not solve election skirmishes which result from the winner- take-all. Going forward, we need to be disciplined about the electoral process," says Mr Nakileau.

For Keiyo South MP Daniel Rono, creation of the Leader of the Official Opposition is long overdue to check government excesses.

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