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Democracy, not elite power games, should drive Kenya’s Draft debate

Thursday November 26 2009

Mr John Arachie with his copy of the draft constitution after the  official launch on November 17,2009. Photo/WILLIAM OERI

Mr John Arachie with his copy of the draft constitution after the official launch on November 17,2009. Photo/WILLIAM OERI 

Renowned political scientist Larry Diamond, in Foreign Affairs magazine (April 2008), clustered Kenya together with an emerging axis of democracies at risk. As a way out, he suggests that “struggling democracies must be consolidated so that all levels of society become enduringly committed to democracy as the best form of government and to their country’s constitutional norms and constraints”

In light of this, democracy should be the watchword in constitution-making to avert the risk of state failure. The question remains about the implications of the introduction of the post of Prime Minister, now one of the most contested issues in the recently released Harmonised Draft Constitution, for Kenya’s democracy and long-term stability.

The post of Prime Minister is neither new nor unique to Kenya. The office of the premier has come to exist in democracies and despotic regimes alike, since Cardinal Richelieu of France first bore the title of Prime Minister in 1625.

In many countries, heads of state (monarchs or presidents) have appointed prime ministers either with or without reference to parliament. Prime ministers in Japan and Papua New Guinea have been elected by parliament. In Israel, prime ministers have been directly elected by the people.

Recently, Sweden adopted a system where the Speaker of Parliament and the parliament itself nominate a candidate who is then elected as Prime Minister (statsminister) by an absolute majority of parliamentarians.

Even in Africa, where democracy is teetering or caving in to new undertows of authoritarianism, 35 out of 54 states have prime ministers alongside presidents or monarchs (Swaziland, Lesotho and Morocco). To be sure, many African countries started off at independence as parliamentary democracies with prime ministers.

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The Lancaster House constitution of 1963 that ushered Kenya to independence enabled Jomo Kenyatta to become the country’s first Prime Minister as head of Cabinet and chief minister.

Through her governor, the British monarch, Queen Elizabeth, served as Head of State, maintaining the external affairs, defence and internal security dockets with veto powers over all legislations.

But the first Amendment Act of 1964 abolished the office of Prime Minister and the Senate and created the Office of the President as the Head of State and Government in a young republic. As elsewhere in Africa, the rise of one-party and Cold War politics fostered an imperial presidency that emasculated parliament and the Judiciary, blurred the separation of powers and abridged democracy.

The impulse to dismantle the imperial presidency drove the struggle for multi-party democracy from the late 1980s. But the clamour for premiership would only come a decade later as part of elitist wheeling and dealing in the late 2002.

Following the historic victory of President Mwai Kibaki’s National Rainbow Coalition (NARC) over Daniel Moi’s Kanu, the quest for greater democracy was replaced by a push for power sharing between the wrangling ethnic factions in NARC.

A faction aligned to Mr Raila Odinga’s Liberal Democratic Party (LDP) accused President Kibaki of reneging on a pre-election memorandum of understanding (MoU) to allocate the LDP half of the Cabinet positions and appoint Mr Odinga as Prime Minister.

Kibaki’s pundits argued that the creation of the post of a premier would divide the country along ethnic lines.

Lynchpins of power

The struggle for the office of Prime Minister bedevilled the Bomas Draft Constitution in 2004, which re-introduced the office. But the post was dropped by the Wako draft, which was defeated by an LDP-led Orange Movement during the 2005 referendum.

Prime Ministers have proliferated in Africa as lynchpins of power-sharing governments in Cote d’Ivoire, Zimbabwe and Madagascar in the wake of a season of disputed elections, ethnic violence, popular protests and military-backed civilian coups.

In Kenya, the office of the Prime Minister re-emerged as the cornerstone of the National Accord that ended the 2008 post-election mayhem. Kenya’s power-sharing fostered an adversarial climate hostile to democracy, to proper functioning of government and to national integration.

Generally, premierships in Africa have been associated, in popular imaginations, with despotic regimes such as apartheid South Africa and Ian Smith’s Rhodesia, and with political instability.

Not surprisingly, post-election executive power sharing between presidents and prime ministers particularly in Kenya and Zimbabwe has evoked eerie memories of instability, chaos and anarchy.

A Kenya-style executive power sharing in the Republic of Congo in 1960 saw President Joseph Kasavubu dismiss Prime Minister Patrice Lumumba, who refused to accept the verdict and, in turn, dismissed Kasavubu.

This paralysed the national government and created military strife, regional secessionist movements and political stalemate, which only ended with the killing of Lumumba and seizure of power by the army commander and latter day dictator, Joseph Mobutu.

More recently, a similar power-sharing deal in Ukraine between President Victor Yushchenko and Prime Minister Yulia Tymoshenko has degenerated into an acute paralysis that has brought the economy to its knees, spread insecurity and given a black eye to the glorious 2005 Orange Revolution.

Ministerial post

Admittedly, there is nothing inherently undemocratic about the prime ministerial post. However, uncannily, the return of a premiership has unfolded against the backdrop of plunging fortunes of democracy and resurgence of authoritarianism in many parts of Africa, Eastern Europe and even Russia.

The motor driving the resurgence of prime ministerial posts across the world are the imperatives of what American academic Jerry Muller has aptly described in Foreign Affairs, vol. 87, 2008, as “The enduring power of ethnic nationalism.”

Ethnic elite

In this regard, Africa’s ethnic elite, now locked in power tussles, has responded to the need to increase avenues of power, patronage, privilege and corruption by pushing for the restructuring of politics and constitutions to multiply posts in the top echelons of power, particularly premierships and deputy premierships.

The downside to the Nzamba Kitonga draft is that it inadvertently builds into the constitution these transient causes of elite power politics rather than focusing on expanding the space of democracy and freedom.

Apparently, the logic running through the draft constitution is a desire to legislate the current adversarial power-sharing arrangement between President Kibaki and Mr Odinga, which has paralysed Kenya’s politics since 2008.

Perhaps, as its most visible blind spot, the draft provides for a State President, elected on a universal suffrage on a high threshold of 50 per cent plus one, and plurality of votes in majority of regions, but reduces the bearer of the office to a ceremonial figure to rubber stamp the decisions of a prime minister elected largely by a handful of politicians from his own party in parliament.

As head of Government with executive powers, the Prime Minister of the Kitonga draft presides over Cabinet meetings, advises the President on dismissals from the Cabinet, coordinates and supervises all major sections of the executive branch and nominates a Deputy Prime Minister, Cabinet ministers and their respective deputies, and presents them to the President for appointment.

The way out of this conundrum should be the search for greater progress, freedom and democracy that vested power in the people.

Accordingly, if real power should rest with the President, then the chief executive must be popularly elected, but be subjected to effective checks by parliament in the spirit of checks and balances and devolve power to regions to forestall an imperial presidency.

This would produce a system akin to the American presidential system where power is shared between a cohesive executive branch and a robust parliament (Congress and Senate) and devolved to the states rather than being shared by two individuals representing ethnic blocs.

However, if Kenyans prefer that real power rest with the Prime Minister, the same democratic logic should prevail with the premier elected directly by 50 per cent plus one of the vote, and the president elected by an electoral college as a ceremonial figure head.

This reflects the model in Israel where the Prime Minister is directly elected by the people as the sovereign power.

Putting Africa’s democracy back on an even keel will demand that constitution-making be guided by the need to expand the frontiers of democracy and accountability to the people rather than to bend to the passing needs of elite power sharing, which is accelerating the fragility of African democracies.

Prof. Kagwanja is a Kenyan scholar based in Pretoria and Head of the Africa Policy Institute (Nairobi)

Africa Insight is an initiative of the Nation Media Group’s Africa Media Network Project.