Deal or bad deal?

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.

Correspondingly, the debate in Naivasha has inadvertently shifted from the concept of devolution to majimboism or federalism. The idea of devolution that informed the Harmonised Draft Constitution and its revised version is the one in which power resides with the central government.

But, in the interest of bringing resources, services and governance to the local people, the government temporarily or permanently grants power to devolved units such as states, regions or local units taking into account the pertinent factors of cost, viability and effectiveness.

In contrast, federalism is not about devolving resource and service delivery to the grassroots; it is about the sharing of the power to govern between national and sub-national governments, creating autonomous or semi-autonomous regions, provinces or federations.

Under federalism, sovereignty is constitutionally divided between a central governing authority and regional units, in which “a group of members are bound together with a governing representative head.”

Majimboism is the Kenyan variant of ethnic federalism, which has been blamed for the cycles of organised ethnic violence or cleansing that has accompanied elections since the inception of multipartyism in 1991.

The revised draft settled for devolution with a two-tier devolved government made up of a central government and 47 counties, which are large enough to be viable and effective and affordable to a resource-scarce country.

In return for agreeing on the “pure presidential” system in Naivasha, the majimboists are pushing for the return into the draft of a three-tier federal government, differing only on the number of regions.

The ODM camp allied to Mr Ruto has pitched for the transformation of Kenya’s eight provinces into regional governments in a federal order that protects them from the central government. The ODM faction aligned to Prime Minister Odinga has called for 15 to 16 regional governments as in the Bomas (Ghai) Draft of 2004.

On its part, before it could even celebrate the victory of its campaign on the presidency and fair representation, the PNU coalition is forced to balance between countering the new clamour for majimboism and its efforts to keep its ODM allies at ease. While sticking to the two-tier devolution with 47 counties, it is pondering a compromise of a three-tier government with 23-25 fairly weakened regions.

PNU stalwarts are happy to embrace this compromise as long as the principle of fair representation is upheld as the cornerstone of both presidential and parliamentary democracy.

But they are also wary of the large unwieldy provinces, some of which stretch from Ethiopia to Tanzania and Somalia to Tanzania or are four times the size of Rwanda or Burundi.

Advocates of federalism will face an uphill task to convince their fellow citizens that this is the modern way to go. As East African countries edge towards a grand regional federation, the general trend is to promote devolution of provision and delivery of most major public services to the lowest appropriate levels rather than grandiose regional structures.

In Uganda, local governments or the district councils are becoming a key element in devolution of resources, tax generation, service delivery and local governance.

But there is a parallel rejection of large, unwieldy regional structures or provinces from Uganda and Rwanda to South Africa. Kenya’s return to the ethnically-defined majimbo or provinces would be a serious back-peddling, where the third tier (region) will only serve to consume resources and undermine efforts to devolve resources and decision making to the lowest possible level.

Recent experiments with the Constituency Development Fund have demonstrated the efficacy of devolving resources to the local people.

The rationale of devolution is not to expand the avenues of elite power by creating regional fiefdoms out of the country, or to weaken central government but to tackle the overriding problem of poverty by empowering the people to provide the services that they judge necessary and to decide their own local priorities in the allocation of resources.

South Africa has a strong and highly centralised form of federalism under an executive president despite having a three-tier government – national, provincial and local. Public pressure is mounting for the abolition of the third tier, leaving local governments for service delivery, revenue collection and distribution of resources.

In the age of ethno-nationalism, majimbo-style federalism can be a threat to national stability and a recipe for secessionism. For instance, the movement for autonomy of Zulu people in Kwa-Zulu Natal in the 1990s led to considerable violence.

Kenya, through CDF, has ensured that local authorities have access to at least the same levels of resources to accelerate local development. The urgent task is to build the capacity, ability, experience and competence of local or country governments to meet the challenge of development, not to multiply layers of power that consume resources.

Most important is the provision of professional staff with the requisite experience and competence and elected members with the political skills, probity and integrity for the task.

The Naivasha meeting has to train its focus on delivering to Kenya a constitution that promotes the dream of a united, democratic and middle income economy.

Prof Peter Kagwanja is a Pretoria-based academic and head of the Africa Policy Institute, Nairobi. He also serves as a consultant on governance to the Office of the President and the Ministry of Foreign Affairs.