Kenya's New Constrained Presidentialism

*Siddhartha Haria

Millions of words have been written on Kenya's constitutional reform process. Therefore, given the chance to add yet more words to his vast literature I would like to address some issues that have not been given the attention they deserve – the importance of tactics and accident in getting where we are now – and to acknowledge the role of some individuals who were instrumental to the process, but have not received the international attention the principals, President. Kibaki and Prime Minister Raila Odinga, have. It has recently become fashionable in Kenya to state that the “hard part” starts now, with the enactment of 49 pieces of subsidiary legislation. Nonsense! The 'hard part', at least in terms of constitution-making is over.

Nothing can compare to this 20 year struggle to produce this document. There have been plenty of ups and downs, delays and reversals. It was supposed to kick-off with introduction of multi-party democracy in 1992. Moi promised 1995 was the 'year of the new constitution'. Kibaki promised a new constitution within 100 days of taking office in 2003.

Moreover, it has exhaustively inclusive – even as an annoying twelve-year old, I received a response to my contribution from the former review chairman Prof. Ghai and reformist MP Paul Muite. This inclusive process has generated a real sense of ownership; this constitution has not come from an ivory tower. With such ownership this constitution will not easily be undone, in the way Uganda's has for example.

Kenyans know their constitutional law, for example, it is quite common in Nairobi to have an advanced discussion on the separation of powers with anyone. Unfortunately, Kenya's broader process of democratization has also had a darker side: many lives have been lost in political and ethnic violence. Still, the blood, sweat and tears of Kenyans was not enough to deliver a new constitution. Kenyan politics was stuck. It was easy for politicians such as Mwai Kibaki to promise reform in opposition, but become reluctant when in power. Turkeys do not vote for Christmas.

Genuine reform threatened to upset vested interests. It is down to chance and circumstances that these obstacles were overcome. Firstly, Kibaki was after the disputed election a second term President, not eligible to run again. Therefore, he was less interested in opposing reforms that would mainly constrain his successor, not him. Indeed the enormous value of term limits should be clear; throughout Africa they have helped midwife political change by changing the incentives of the incumbent. Moreover that disputed election threatened to tarnish his legacy, helped concentrate minds at home and renew pressure abroad. It is a cliché, but it took crisis to bring real reform. In the aftermath of the crisis Kenyan MPs passed legislation to re-start the review process. Martha Karua drew up a watertight bill that basically put the process on auto-pilot. If politicians failed to play their role, there were mechanisms for the process to continue. It is puzzling that Kenyan MPs passed such bold legislation that bound them to completing the reform process. The answer is simply they were sleeping, not paying attention to the laws they were enacting. Indeed several MPs, including, William Ruto, leader of the 'No' Camp, later expressed surprise at provisions that only required a simple majority to pass the document on to the referendum stage, but a two-thirds majority to amend it. We owe our new constitution to such accidents. In comparison it will be much easier to pass the 49-odd subsidiary laws, the threat of dissolution and attendant loss of perks will keep our MPs working. This new constitution, despite being the product of a messy political compromise, is a good document. At one stage the reform process became bogged down in a battle between proponents of presidential and parliamentary systems as well as advocates of various hybrids.

Credit is due to the young, first-time MP, Abdikadir Hussein Mohammed, as chairman of the parliamentary select committee for helping craft a genuinely presidential system with stringent checks and balances that nobody loved but nearly everyone could live with.

There are a number of other desirable reforms included:

• The President must win over half the votes in an election, with provision for a run-off. This will prevent a candidate lacking broad national support being elected because of ethnic splits.

• Key Presidential appointments require parliamentary approval.

• The old KANU tool of executive political control, the Provincial Administration is abolished, replaced by a system of devolution.

• The sharing of power and revenue through devolution should help reverse the marginalization of parts of Kenya. More importantly it means groups that do not capture the presidency are not locked out of power all together.

• Constituencies have to of a nearly equal size with limits on how much their population vary, ending a long history of gerrymandering.

These reforms are not a boilerplate wish-list; they are not prescriptions of motherhood and apple pie. They change the incentives political players face and have the potential to transform politics. It is customary for pieces on Kenya to note our troubles with our northern neighbour Somalia. I would like to end on a different note and point to an observation made by Charles Onyango-Obbo, that if Kenya has a 'Somali headache' it also has a 'Somali dividend.' With mistrust between the larger ethnic groups, Kenyan Somalis are called upon to act as neutral brokers. They have certainly risen to the task. Abdikadir Hussein Mohammed, mentioned above, is a Kenyan Somali from an unprivileged background who through hard work made it to Harvard. The chairman of Interim Independent Electoral Commission, Issack Hassan who made sure the referendum was the most credible electoral exercise in Kenya's history is another Kenyan Somali. They are amongst the finest public officials we have. *This opinion by Siddhartha Haria was first published in the OpenDemocracy on August 23, 2010

Disclaimer: Views expressed in this section do not represent the opinions of CISA.

Women want Fair Share of Constitution Spoils

Rosemary Okello

As the country gears up to the promulgation of the new Constitution on August 27, the women of Kenya under the umbrella of G-10 are already worried that their hopes might be shattered if the spirit of the Constitution is not captured from the onset in the Constitutional Oversight Implementation Committee.

During a planning meeting to set up their priority areas within the implementation process, the women said they do recognise and affirm the importance of the implementation process and that is why they are calling upon the political leadership to honour the letter and spirit of the new Constitution by ensuring that women's issues are taken seriously and are not glossed over.

Grace Maingi Kamau, the Executive Director of FIDA-Kenya is on record saying that women have been part of the constitutional process for a long time and expect that the implementation should go hand-in-hand with the national values and principles of governance which are clearly stipulated and include human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised.

Even though they are cognisant of the fact that it will no longer be business as usual women are aware that several critical offices shall be central to the full implementation of the New Constitution.

These include the office of the Chief Justice, Attorney General, The Director of Public Prosecutions, The Judicial Service Commission and the envisaged reforms in the Judiciary, therefore they do not only expect the adoption of a transparent and accountable criteria in the appointment of officers to these offices but also meaningful and effective participation by the women.

To make sure that the woman become part of the implementation process, they have set up a task force to work with the two principals namely; President Mwai Kibaki and Prime Minister Raila Odinga, the Parliamentary select committee, the implementation commission as and when it is set up, MPs and other stakeholders in the implementation process.

Deborah Okumu the Executive Director of the Caucus for Women Leadership points out that they are developing a database of names of women who can either be part of the implementation process or be appointed in the various posts in line with the Constitution.

According to her since no appointment will be lawful unless it respects the principle where no one gender will constitute more than two-thirds, this will make it easy for the relevant institutions to tap into the data which she said is very representative in terms of various professional, it also represents all the region in Kenya and it has inter-generational dimension.

With the new Constitution in cases in terms of the leadership positions, when the chair is a woman, the vice chair shall be a man and vice versa. The women would also like to see the enhancement of the human rights and political advancement of women through the new constitution.

The women are also planning to launch an auditing tool, which they will use to audit the implementation process from a gender perspective. Reports from the same will be issued every fortnight or as will become necessary.

This means that Kenyans must remain engaged, extremely vigilant of the implementation process and together as men and women to work together to enhance principles of democracy where each citizen is equally valued and has rights to participate in governance, regardless of ethnicity, gender, and disability status, among others.

Disclaimer: Views expressed in this section do not represent the opinions of CISA.