Is the ghost of Naivasha beginning to haunt us?

What you need to know:

  • The Committee of Experts (CoE), which I headed, was advised by the Naivasha Committee not to tamper with this pure presidential system agreement and several other new clauses because — in the words of Abdulkadir Mohammed — they were “deal breakers”.
  • The harmonised draft had proposed that a presidential candidate be allowed to contest both the presidential and parliamentary seats. The successful presidential candidate would then automatically lose his parliamentary seat. This clause was eliminated in the haggling at Naivasha. 
  • The other source of concern in devolution appears to be the vexed question of the provincial administration. It is immaterial that its officers are now christened County Commissioners.  For the governors, it remains a source of friction in terms of the need for an ultimate source of authority within the county.

I was startled in 2010 to learn that the now famous Naivasha meeting (of the Parliamentary Committee on Constitutional Review) had agreed on a pure presidential system of government.

This was shocking because, during the entire constitutional review debate, no person or political party had ever seriously proposed this system. 

The Orange Democratic Movement (ODM) — one-half of the Grand Coalition Government — and some civil society groups had always favoured a parliamentary system of government.

The Party of National Unity (PNU), sections of the civil society, and religious groups had stood for a hybrid system with a powerful executive President, perhaps a nominal Prime Minister and a Cabinet drawn from Parliament.

Later on, I heard a story whose authenticity I have never established. I was told that during the Naivasha meeting some MPs who wanted the old constitution retained decided to achieve this by creating a stalemate. 

The idea was to offer a pure presidential system as a compromise, which ODM would automatically reject in favour of a parliamentary system that PNU did not support.

The resulting stalemate would save the old constitution. It was said that ODM, believing this to be a bluff, accepted the pure presidential system. PNU, on its part, also thought that ODM, in accepting the bluff, was only bluffing. So PNU maintained its original bluff. And the pure presidential system was born.

The truth of this tale must be left to historians. However, it is a fact that in his writings Prof Anyang’ Nyong’o, the Senator for Kisumu, is ever nostalgic on the missed opportunity to have a parliamentary system.

ADVISED NOT TO TAMPER WITH

The Committee of Experts (CoE), which I headed, was advised by the Naivasha Committee not to tamper with this pure presidential system agreement and several other new clauses because — in the words of Abdulkadir Mohammed — they were “deal breakers”.

It is, of course, too early to audit the success or the failure of the 2010 Constitution. However, some events always prick me into asking: Is the ghost of Naivasha beginning to haunt us? The ghost here is the Parliamentary Committee meeting, which tampered with the CoE’s draft constitution.

The harmonised draft had proposed that a presidential candidate be allowed to contest both the presidential and parliamentary seats. The successful presidential candidate would then automatically lose his parliamentary seat. This clause was eliminated in the haggling at Naivasha. 

We had looked at the experiences in several jurisdictions where the exclusion of formidable presidential candidates from the mainstream political institutions had caused negative feelings of exclusionism and created disharmony. 

This is not restricted to the candidate alone, but also the supporters. It is a fact that some of these unsuccessful presidential candidates retain a large constituency of supporters running into millions. This group feels excluded and unrepresented.

Going by what we witnessed at Uhuru Park on May 31 when former Prime Minister Raila Odinga returned from the US, and subsequent political activities, we need to analyse the wisdom of excluding this clause. A situation like this can breed national instability owing to the feelings of exclusion. Many believe that the safer bet is “even if he is out of the room let him remain inside the house”.

The other clause that Kenyans seem to worry about is the exclusion of MPs and Senators from appointment as Cabinet ministers (or secretaries). Again, this is a byproduct of the pure presidential system. I have heard complaints that the system has no mechanism for the “promotion” of politicians. Unless you become president or deputy president you are forever condemned to remain an MP or a Senator.

The spice, glamour and attraction of political office are lost. There are also complaints that this system does not offer the opportunity to directly interrogate ministers in the House.

POWER-HUNGRY POLITICIANS

These can be treated as the cravings for office by power hungry politicians. However, in the rural areas wananchi are also grumbling. They say they no longer “feel” the government. They long for the days when an MP/minister would visit the grassroots to be “with them” and explain government policies at their level and in their grassroots language — including dancing, singing, cheering and generally inspiring the crowd.

The main sphere of political fights and uncertainty appears to be devolution. To be fair, there is an irrevocable unwritten agreement among Kenyans that devolution is here to stay.

The problem of devolution appears to be caution versus enthusiasm. The Opposition Cord and the Council of Governors — who are both calling for a referendum — are demanding faster and deeper devolution with immediate increased resources to counties. But the Jubilee Government wants to tread with caution as it addresses the “teething” problems. Both approaches have advantages and disadvantages and this could have been a perfect opportunity to debate attaining a desirable equilibrium. However, the opportunity has been lost in the cacophony of political brinkmanship. 

The required 45 per cent of the national budget has, for example, not been explained — why not 20 or 30 per cent; why 45?  Furthermore, will such an increase not negatively impact on the operations and programmes of the national government?

The other source of concern in devolution appears to be the vexed question of the provincial administration. It is immaterial that its officers are now christened County Commissioners.  For the governors, it remains a source of friction in terms of the need for an ultimate source of authority within the county.

The national government may maintain a straight face in claiming that it needs County Commissioners and their many officers. But the truth is that the national government is reeling under a stifling wage bill and gross duplication of functions. It will eventually have to either abolish or drastically reduce the size and functions of its officers based in counties.

Then there have been fights for space between the National Assembly and the Senate. These could have been avoided if Naivasha had not tampered with the Senate that we had created as an upper House with clear overall mandates vis-a-vis the National Assembly. Governors have now adopted the empowerment of the Senate as part of their referendum strategy.

There are also fights between the County Assemblies and Governors and even Speakers of the Assemblies. Further, constitutional commissions have had their own share of criticism.

In particular, the National Land Commission is mainly engaged in fire-fighting instead of executing its mandate. And the Judicial Service Commission had to seek refuge in the draconian authority of its own Judiciary to protect itself from the onslaught by parliamentarians. Even the presidency is on occasion battling allegations of overstepping or avoiding its mandate in the courts. 

But Kenyans need not worry. 
This is how slowly and irreversibly a system of checks and balances takes root. The fights are healthy as eventually all institutions will come to accept their mandates and their limits. Parliament has, for example, already lost the war in the MPs’ bid to decide their salaries and perks.

PERFORMED ADMIRABLY

The courts have performed admirably in navigating the many competing interests and institutions through the volatile waters of implementing the Constitution. We may not always agree with their decisions but, in fairness, most of them have leaned in favour of protecting and advancing the principles of the constitution. 

The courts could, however, better their image by quickly and decisively concluding cases involving suspended judges.  These cases have been pending for a long time. There is a perception which may or may not be justified that judges are protecting each other at great public expense.   

But those who should congratulate themselves the most are ordinary Kenyans. From as far as Wajir, I have heard Kenyans appreciating devolution by saying “sasa tumeanza kupata haki yetu” (we’ve now started enjoying our rights).

Inspector-General of Police David Kimaiyo has learnt his lessons and stopped giving orders not backed by the law because Kenyans are acutely aware of their rights. But it is at the courts that Kenyans have demonstrated an overzealous ability to protect and fight for their rights.

They have challenged almost every decision that has the slightest suggestion of unconstitutionality.

The constitution is not perfect. And even if it is amended it may never be perfect because human beings must remain human. Our ideas, ideals and ideologies will always differ. And so we shall from time to time amend the constitution to accommodate each other and to ventilate new ideas.

The referendum proposed by CORD and the governors is not necessarily a bad idea. It may, however, be too early for such a drastic step. It is mostly informed by the government’s adamancy. 

In August 2015, the main scheme of implementation of the constitution should have been completed. This will be the perfect opportunity for the government to organise a national conference and debate to audit the constitution. It can even make the promise now. The conference can then address all areas of concern and a way forward can be agreed upon.

I wish all Kenyans a happy constitution birthday on August 27.

The writer was the Chairman of the Committee of Experts that drafted the 2010 constitution