Why Jubilee rule threatens the will of the people

At midnight on December 12, 1963, down came the Union Jack and up went the black, white, red and green flag of an independent Kenya.

Mzee Jomo Kenyatta would be sworn in as prime minister guided by a Constitution negotiated in London while he was languishing in detention. Naturally he didn’t like some of its provisions. It enshrined a multiparty political system and a devolved sytem of government with regional assemblies to boot. It was a majimbo charter.

Emboldened by the grand law of the land, some regional leaders considered themselves mini-presidents. Ronald Ngala, writes Duncan Ndegwa in Walking in Kenyatta Struggles, converted what is now Mombasa State House into the headquarters of the coastal government and flew a small flag on his car to the chagrin of Tom Mboya who would later pluck it off during Kenyatta’s visit to the coastal province in 1963.

According to Ndegwa, Kenyatta had pronounced the Lancaster House Constitution dead on its arrival at the airport because he believed it furthered settler interests and had a potential to split the republic into regional fiefdoms.

Weeks after independence, he writes, Kenyatta would, against the advice of the Attorney-General, declare a state of emergency in North Eastern Province to contain the Shifta secessionists who had the backing of Somalia. In Kenyatta’s mind, this existential aspect of the national interest overrode the Constitution.

It was a decision based on political pragmatism as opposed to the rule of law. It showed that, weighed against certain imperatives, constitutional supremacy took a backseat. The danger lay in stretching such pragmatism too far.

Regional governments would be reduced to nothing by starving them of cash in spite of being creatures of the Constitution. “Through the civil service machinery, we were able to frustrate the transfer of money to the regions, thereby asphyxiating them by denying them financial support,” writes Ndegwa, independent Kenya’s first Secretary to the Cabinet and Head of the Civil Service.

The ground had been set for an imperial presidency with the Judiciary and the Legislature as mere appendages to the Executive. In 1966, the Constitution was amended to legalise detention without trial. More laws would be changed to suit Executive whims as was the case in 1975.

A court of law had found Paul Ngei, a Kenyatta ally, guilty of an election offence and barred him from contesting in any polls. The second amendment was introduced to empower the President to forgive election offenders, giving them a lifeline to contest in subsequent polls. The election petition had been filed by Kithika Mbondo.

Ngei would trounce his rivals in the ensuing by-election.

After the assassination of charismatic politician Josiah Mwangi Kariuki in 1975, a parliamentary investigation linked Kenyatta’s righthand man Mbiyu Koinange to the death. The President refused to accept the report unless Koinange’s name were expunged. The committee obliged.

A military parade in Nairobi with the President taking a salute reminded his critics, just in case, that the coercive arm of the State was intact.

Earlier in 1973, thousands of acres of land in Taita Taveta found new owners in the persons of President Kenyatta and Basil Criticos.

The land had belonged to Lord Delamere, but his 99-year lease had expired. Under the Constitution, Ndegwa writes, the President had the sole discretion to dispose of land as he saw fit “in consultation with the relevant authorities under him”.

In Ndegwa’s view, the matter should have been discussed by the Cabinet, but it never was. The land in question remains a thorny issue.

But the President was human. Some of his aides took advantage of his advanced age to water down the Constitution. The most blatant attempt being the Change-the-Constitution brigade of the mid-1970s led by Kihika Kimani, Njenga Karume, Paul Ngei, Jackson Angaine and a coterie of Central Province politicians.

Their game plan was to block Vice-President, Daniel arap Moi from acting as the President for 90 days in the event of Mzee’s death or inability to execute his duties. They probably would have succeeded were it not for Attorney-General Charles Njonjo, a man whose disdain for the Gikuyu, Embu and Meru Association (Gema) was no secret.

He warned the ethnic alliance that was discussing and imagining the death of the President was illegal.

Moi would later take the imperial presidency to higher levels. The received opinion is that Moi was actually well-intentioned until the 1982 coup attempt that convinced him that nothing short of wielding the big stick would do the trick.

The Moi state would be anchored in deplorable real politik. Deplorable because the line between his personal and state resources became so blurred as to be invisible. Land belonging to the Agricultural Finance Corporation and the Kenya Agricultural Research Institute was the currency for buying political support.

The Judiciary was packed with malleable judges. Independent ones like Justice Chunilal Madan were shown the door. The AG would bizarrely support his own loss of tenure of office and that of judges and the Auditor and Controller General. But this was hardly surprising.
A judge had ruled that public servants in Kenya held their jobs at the pleasure of the President. That was after President Moi had fired Special Branch deputy boss and business partner Mwangi Stephen Mureithi who challenged the firing in court.

Friendly judges would handle cases involving dissidents with predictable outcomes. Corruption cases involving pro-establishment figures would go unpunished.

The nadir was the 1982 constitutional change that made Kenya a single-party state, giving Kanu a near-political monopoly. The party would, against the rules of natural justice, suspend or expel members in the guise of instilling discipline.

The charges would invariably revolve around disloyalty or failing to respect a party functionary. Expulsion meant the death of one’s political career unless they were, in the Kanu word for it, “rehabilitated”. To be rehabilitated, you had to, eyes teary, issue a grovelling apology as did Coast politician Said Hemed for insulting Kanu supremo Shariff Nassir.

ZERO RESTRAINT

“Moi had zero restraint and would make a public example out of whoever opposed him,” says lawyer Paul Mwangi.

With the President unrestrained by the Constitution, few impediments would stop the Moi administration from having its way. When it realised that “undesirable” candidates were being elected to Parliament through the secret ballot, it introduced the despicable practice of queue voting where the candidate with the longest queue wasn’t necessarily the winner.

A piqued Mwai Kibaki would complain: “Rigging requires some intelligence,” when he realised that his supporters in Nyeri were losing regardless of the length of their queues.

It would take a concerted effort by political heavyweights like Jaramogi Oginga Odinga, Kenneth Matiba, Young Turks, civil society, donors and Western powers to prod Moi into having Section 2(a) of the Constitution removed after which Kenya reverted to a multiparty political system.

Kibaki’s tenancy at State House from 2003 to 2013 restored hope in democracy. He wasn’t given to sycophancy and roadside edicts. His aloof mien and tight hand on the purse strings put an end to State House homages that had foisted his predecessors to imperial heights.

“The only serious constitutional blemish on Kibaki’s presidency was the appointment of an electoral commission without consulting the opposition ahead of the 2007 polls,” says Mr Mwangi.

What about the present occupant of the big house on the hill? “For the first time we have a Constitution that curtails the powers of the President,” says University of Nairobi political scientist Prof Karuti Kanyinga. He says the fact that most presidential appointments are subject to parliamentary approval has reduced his powers considerably.

“The vertical and horizontal distribution of power has dismantled the imperial presidency,” says Constitution Implementation Commission chairman Charles Nyachae. By horizontal he means the Executive, Judiciary and the Legislature, while vertical refers to the national and county governments.

However, this doesn’t mean that the President isn’t having his way in matters that are seen as taking Kenya back to the days of an all-powerful presidency. On Thursday, the National Assembly passed two conflicting laws, one creating an independent media commission, and the other a powerful appeals tribunal answerable to the Executive.

According to Prof Kanyinga, the situation would probably have been different if the President’s Jubilee coalition were a minority in the National Assembly and the Senate.

BIPARTISAN SUPPORT

“Such a president would have to negotiate with the leader of the majority (from a rival party) to secure bipartisan support in Parliament,” he says. It is the sort of horse-trading that is good for democracy because no institution could ride roughshod over the other. The alternative, he says, would be a situation akin to the recent shutdown of public services in the United States.

He blames the culture of rubber-stamping executive interests by the National Assembly and the Senate on the dilution of Chapter Six (Leadership and Integrity) of the Constitution.

The chapter had initially barred people with blotted pasts from occupying public office, but the National Assembly amended it to remove such filtering mechanisms. “It is the one responsible for this negative political culture,” he says.

According to Mr Mwangi, the National Assembly and the Senate are encouraging a resurgence of an all-powerful presidency by subordinating the national interest to the Executive interest.

“They are restoring to the President the powers that the Constitution took away from him”. Of a different opinion is former Cabinet Minister Soita Shitanda. By having non-political Cabinet secretaries, he claims, the President has been handed loyal servants “who cannot question his decisions”.