The Senate is vital for Kenya we have now

Friday February 12 2016

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Professor Ben Nwabueze is a sharp, witty retired Nigerian scholar of constitutional law, perhaps one of the greatest West African contributors to African intellectual, political and legal thinking.

His sharp mind can explain complex realities in just a brush stroke.

Almost three decades ago, Nwabueze summarised the specific characteristic of the presidency in Africa. He called it the “Africanness of the Presidency in Africa”:

“It refers to the fact that it is largely free from limiting constitutional devices, particularly those of powers. It is the universal absence of such restraint mechanisms that is implied in the qualifying word 'African'.”

Nwabueze had hit the nail on the head. The Africanness of our presidency was like a blank cheque, with unlimited powers and little accountability. This had to change if we were ever to become truly democratic.

In fact, President Moi had already realised that the powerful ride he had enjoyed since 1978 would not last much longer. I remember listening to his New Year’s address on January 1 1996, a few seconds after midnight, on the KBC English Service. I was awestruck.

Moi announced, unexpectedly, that we would have a new constitution. Most people thought this would be a way to perpetuate his stay in power. Many of today's ‘so-called’ modern reformers asked Mzee to go ahead and stay in power, but they had misread Moi’s mind.

A little more than two years later, Moi was still insisting on reforms. He caught many allies unawares when he declared on Monday, August 24, 1998 that the focus of remaking the constitution [of Kenya] should be to ensure [that] the over-concentration of power in the presidency is done away with.”

Basically, Moi wanted a “less African” presidency. What did this mean? What would be the ideological pillars of such a structure?

Although we had our own troubles and tension like Mau Mau, Saba-Saba or Nane-Nane, we did not fight wars on the scale of a French Revolution. Yet those are the systems that informed the creation of modern democratic structures, which are good only when properly adapted and adopted.

For example, while left or right is not in the main course of our political menu, while in Europe it determines not only the menu, but its presentation and cooking style. In Europe and the Americas, the right-left political spectrum identifies two stands that express different views regarding the socio-economic order.

The genesis of this spectrum is quite amazing. In the late 18th century, when the French Revolution was catching fire, there arose a sharp division between the supporters of the king and his opponents.

Those in support of the king congregated on the right while those against sat on the left. There were some few members gathered at the centre, called moderates.


The right wing political stance was seen as conservative while the left wing was seen as a liberal movement.

This spectrum in continental Europe is comparable, in loose terms, to the American division between the Republican Party (right wing) and the Democratic Party (left wing).

In the United Kingdom, the Conservative Party (Tories) best represents the right wing stance while the Labour Party and the Green Party are the main left wing parties.

This fortuitous sitting arrangement gave birth to ideological camps that many misunderstand today. They label political philosophies, agendas, voting patterns in spite of having sharper and bitter differences within them.

On the other hand, Africa was illumined by very accidental means – slave trade and the colonial scramble for land. History, whether we like it or not, marks a country’s social and legal development deeply.

Our colonial history made these differences more ethnic than ideological. In our case, we had to find an arrangement which would accommodate a less powerful, more accountable president without disintegrating the country.

By removing powers from a central, almighty president, we risked disintegration. This is why federalism was not the answer, for federations easily break in the face of poor inter-ethnic identification.

The president’s powers had to be limited but the country needed to be kept together. The best answer was “devolution”, a sort of hybrid that kept the country united but placed executive powers at the periphery, closer to the people.

The governors were designed to be implementers and executors. They were given little power to decide but had huge discretion when it came to execution. This is why it is silly to refer to governors as ‘excellencies’.

They may be excellent governors, but ‘excellency’ is a term usually reserved for guardians of sovereignty, not execution.


The devolution model would allow the president to focus on national problems without being disturbed by and blamed for petty local politics or problems restricted to concrete localities.

This new model was close to a novelty. Ekwee Ethuro put it rightly when he said that the Senate is the ‘guardian angel’ of devolution. The Senate was a rather mature step in the democratic process. Senators were the new elders of African democracy.

Our Senate is quite special. It is not the higher House or the lower House, but was created to get the political overseeing and legislative functions of Parliament out of Nairobi, into the countryside. It was created to reach the people and guard devolution by watching over the counties. 

The idea was that Senators would be listened to because they had larger representation. They would accompany governors, oversee their work and bring together the members of the National Assembly to keep the good of the whole county in mind, and harmonise their work with the County Assembly’s agenda.

Senators did not have executive powers. They did not need them, for they were the Elders of African democracy. Respect for Elders did not need to be legislated for it belonged to the beautiful African sense of respect, maturity and hierarchy. It was all a beautiful utopia.

Things have worked out differently. The National Assembly has conspired against these Elders, shut its ears to them and declared them insane and unnecessary.

An ugly battle ensued between fathers and children, the young generation here represented by the members of the National Assembly.

Certainly, physical power can overthrow moral power, but it will always be off-centre. It is not sustainable.


Unless the National Assembly comes to terms with the Senate and finds a formula to work with it, whether through constitutional reform or political consensus, the guardian angel of devolution will be destroyed.

It is already being threatened by the fact that Senators do not see a way to be re-elected for they really can achieve little at county level.

Senators have no Constituency Development Fund (CDF), which was an unconstitutional way MPs found to perpetuate some sort of executive power. Senators do not participate in mainstream legislation, for the National Assembly has have shunned them.

Senators have no lobbying power. So people ask themselves, what do they do? No wonder the most prominent Senators may want to try their luck at governorship.

Doing away with the Senate will be a terrible mistake. We will all repent and MPs will strike their breasts in lamentation, but no one will admit fault. They will say “it just happened”.

Once the Senate is done away with, devolution will be off-centre and the presidency will again have to grab those powers that were once devolved.

We will go back to the Africanness of our presidency and the cycle will repeat itself again and again, while we see development taking place in other nations, other continents and wonder why.

Dr Franceschi is the dean of Strathmore Law [email protected], Twitter:[email protected]