Deal or bad deal?

• CONSTITUTION: Wheeler-dealing and tactical compromises at the Naivasha retreat have killed the historically controversial PM’s office only to shift the site of deadly power struggles to ethnic federalism

In a dramatic twist of events, the Parliamentary Select Committee deliberating on the revised draft constitution unanimously adopted an American-style presidential system for Kenya.

This move has sounded the death knell for the short-lived office of the prime minister. However, the decision has also re-opened the age-old acrimonious debate on Majimboism — Kenya’s homegrown ethnic federalism — which has mined the road to constitution making for decades.

The meeting of parliamentarians in the Great Rift Valley Lodge, Naivasha, proposed a powerful president as Kenya’s chief executive elected by a popular vote of 50 per cent plus one and majority vote in the counties.

Inadvertently, both the Harmonised Draft Constitution published by the Committee of Expert on Constitutional Reform on November 17, 2009 and its January 8, 2010 revised version, provided for a Russian-style mongrel executive.

In Russia, the Prime Minister (Vladmir Putin) is elected by parliament (Duma) as head of the Government of the Russian Federation and his erstwhile protégé, Dimitry Medvedev, is elected on a popular vote as the head of state in a power-sharing government.

A majority of Kenyans who submitted their views to the CoE on the Draft Constitution rejected a bifurcated executive, arguing two centres of power pose a risk to national unity and stability in an ethnically-divided country and handing over power to a prime minister elected by a handful of parliamentarians undermines the tenets of democracy, the principle of accountability and the sovereignty of the electorate.

How to dismantle the legacy of an “imperial’’ presidency has been the bone of contention between partners in the grand coalition government of Prime Minister Raila Odinga’s ODM and President Mwai Kibaki’s PNU.

To its credit, the PSC drew attention to Parliament, Judiciary and devolved government units as the natural and sufficient curbs on abuse of power by a powerful president, thus exposing the philosophically flawed view that the office of the PM can, in any way, prevent such abuses without creating a dysfunctional government.

For the second, and seemingly the last time, the option of a powerful president ends the short-lived era of the office of the prime minister in Kenya’s history. Jomo Kenyatta became Kenya’s first prime minister under the 1963 majimbo constitution, but the office was quickly abolished by the first amendment Act of 1964, which created an executive president.

The shift of opinion in the public sphere in favour of the return of a powerful presidency, albeit with the basic curbs on excesses, comes as a “fare-thee-well” to the controversial office of PM which was re-introduced by the National Accord that ended the 2008 post-election mayhem.

Indeed, the office of the premier has become an ugly mark on the face of electoral democracy in Africa, from Madagascar to Cote d’Ivoire, Kenya to Zimbabwe, where power-sharing coalitions have given way to adversorial and dysfunctional governments, which have torpedoed development, poverty alleviation and service delivery to the vulnerable sectors of society. This has fostered extreme public aversion to a divided and ineffectual national leadership, everywhere identified with offices of the PM.

However, the demise of “premiership” and the return to glory of the “presidential system” signified a tactical compromise on the part of the ODM power elite, largely imposed on them by the swing of public opinion in favour of a popularly elected president against the backdrop of a looming referendum on the road to the crucial 2012 elections.

In a sense, it also highlighted an emerging political consensus arising from the cutting of deals between sections of the PNU allied to Deputy Prime Minister Uhuru Kenyatta and those of the ODM faction aligned to Mr William Ruto in the wake of the disarray in the ODM over the Mau issue.

Despite this, the deal-making season has not put a stop to deadly intra-elite games to capture state power. Instead, the new-found consensus on a strong presidency is simply a tactical shift of the site of the deadly elite struggles that plunged the country into the 2008 catastrophe to devolved government units more as alternative fountains of power and influence than checks on the executive power.

Not surprisingly, both the Odinga and Ruto factions of ODM have quickly tabled proposals calling for one shade or another of the defunct majimbo or federal government system as constitution making enters its dark night of the long knives.