The President of Kenya should not be a messiah

Friday November 3 2017

By LUIS FRANCESCHI
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For the Jubilee side, anything that Raila Odinga says is absolutely wrong, dangerous and treacherous. For Nasa, anything President Kenyatta says is abusive, misguided and threatening.

This is faulty by all rational standards, more so when these two men have many virtues and some certain pitfalls, as every human being does.

How did the Presidency in Kenya become a religion? What mistake did we make for a president to remain so relevant when the 2010 Constitution took away almost all exclusive powers?

The president has no powers to make appointments without Parliament’s vetting; he does not approve expenditure or control revenue; he cannot allocate land at will. 

History usually unlocks uncountable mysteries and intentions. For example, in the Roman Empire, triumphal possessions celebrated heroic deeds performed by the greatest generals; they were no mean feat.

Generals with triumphal possessions were received in Rome with the greatest possible pomp.

Such a procession was only awarded to generals whose conquest complied with four characteristics: First, the battle must have been fought on foreign soil; second, the conquest should have added at least 100,000 square miles to the Roman Empire; third, the general's army must have killed at least 5,000 enemies in one engagement; and fourth, the general must bring to Rome the spoils of victory.

Triumphal possessions were the greatest honour a general could receive, and if the luck of the times came together, he could end up becoming the new emperor or something quite close to it.

This messianic approach to the Emperor, the Conqueror, the President, is still very much with us in Kenya. We are so polarised that our leader of choice has become truly infallible, everything they do or say is a triumphal possession.

UFUNGAMANO INITIATIVE

Making the 2010 Constitution was not a straight, simple path.

In the 1990s, the Kenya Human Rights Commission, the Law Society of Kenya and the International Commission of Jurists (Kenya Chapter) drafted and circulated a “Proposal for a Model Constitution”. 

Extensive consultations and workshops were organised. Pressure mounted on Daniel arap Moi, who was president at this time, to announce plans, on January 1, 1996, to invite experts to draft a Constitution for consideration by the National Assembly.

Nothing happened, and mass action ensued, leading to violence and deaths. Then, two opposing groups were formed to deal with the pending review.

One group, the ‘Ufungamano Initiative’, backed by national religious organisations and organs of the Civil Society, appointed a People’s Commission of Kenya (PCK). The other was a parliamentary process backed by Moi’s government and allied political parties. This group established a Parliamentary Select Committee.

Parliament was dissolved earlier than expected and not all the proposed reforms were enacted.  Luckily, the Constitution of Kenya Review Act (1997) had already come into force as part of the IPPG package.

The Constitution of Kenya Review Commission (CKRC) was established and 15 commissioners appointed in November 2000. The Commission’s chairman was Yash Pal Ghai, one of our most renowned and experienced constitutionalists.

There was still a huge challenge. Two separate processes, the Ufungamano initiative and the Parliamentary Select Committee, were moving in parallel.

Yash Pal Ghai’s first delicate task was to bring them together, which he did.

The National Constitutional Conference was scheduled to commence on October 28, 2002, at the Bomas of Kenya. The day before, on October 27, 2002, President Moi dissolved Parliament and the process stalled.

Mwai Kibaki won the elections, and his new political outfit, the National Rainbow Coalition - (NARC) promised to deliver a new Constitution within 100 days.

MEDIATION PROCESS

Deep rivalries and differences appeared within NARC, and the constitution-making process was politicised, meaning nothing had happened after 100 days.

The Bomas draft came took almost two more years to be born. It was then taken to Naivasha, where it was politicised and baptised. It became the Wako draft.

The Wako draft was taken to a referendum. No consensus had been reached, and the Kibaki allies had tried to push it down the throat of the opposition.

The 'No' campaign gathered momentum, the Orange Democratic Movement was born and the overwhelming majority of Kenyans rejected the Wako draft on November 21, 2005.

The review process died. It was not revisited until Koffi Annan’s mediation process in the aftermath of the brutal post-election violence of January 2008.

Agenda No. 4, of the Kenya National Dialogue Reconciliation Committee (KNDRC) agreed on the need for comprehensive constitutional reforms as an inevitable transitional measure.

Two important laws were enacted: The Constitution of Kenya Review Act (2008) and The Constitution of Kenya (Amendment) Act (2008).

The Review Act established a Committee of Experts (CoE) whose mandate was to identify contentious issues, to propose solutions to them, and to harmonise agreed issues.

AMORPHOUS PARLIAMENT

The CoE published the 2009 Harmonised Draft. It was discussed and approved in parliament. Shockingly, the final version of this draft, known as the Revised Harmonised Draft was a radically different document, and this is the one Kenyans voted for in the August 2010 referendum.

There are three key areas that define the theoretical essence of a constitutional draft: The Bill of Rights, the system of governance and the way of relating with other nations.

The first draft was founded on a system of governance with greater parliamentary controls, a more limited Bill of Rights, and a dualist system for domestication of international agreements.

Instead, the promulgated constitution was presidential, extremely wide in its Bill of Rights, and adopted a rather essentially monist approach to domestication of international treaties.

In the rush to change the system from parliamentary to presidential, many wide and ample powers were ambiguously left in the hands of the National Assembly.

They were engineered to meet short term political interests, in total disregard of their future impact.

What did we end up with? A presidential system held hostage by an amorphous parliament with unusual powers; a Senate where each Senator has huge representation but very little power, and a National Assembly with scary, wide powers and members who represent very small units.

POLITICALLY DAMAGING

The fact is, the institution of the presidency in Kenya remained neo-messianic. Presidents are saviours who do everything right; they are never wrong, and should they be wrong, then ‘wrong’ becomes ‘right’.

They say what must be said at all times, for their word is God’s word. They are prophets, though they never predict what is going to happen but what they are going to do, the truth they will find, the roads they will build, the happiness they will bring.

This nonsense must come to an end for the sake of the President, of the opposition and most of all, the people.

The presidency in Kenya should be the cog that brings together all the counties, institutional structure, and not the barrier that separates citizens. This is why the repeat election was so politically damaging. Instead of bringing us together it pulled us further apart.

FOCUSED AND RELEVANT

There are two possibilities for the government, repression or dialogue. There is no third choice.

We are back to the 1997 impasse between the Ufungamano, where many of our government officials were agitating for change, and the Parliamentary Select Committee, where many of our opposition leaders defended the government of the day.

We need sincere dialogue, putting immediate political interests aside and jumpstart a small, focused and relevant review process which aims at amending a few but important aspects of our constitutional arrangement.

One important goal will be stripping off the presidency of any messianic traits, which requires sincerity, openness and courage.

For this process to succeed, President Kenyatta must listen to Raila Odinga. Raila must listen to Uhuru. We cannot continue forever in this tiring stalemate. It's wearing the country out.

Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi