It is almost 100 days since Mr Raila Odinga and President Uhuru Kenyatta shook hands in reconciliation outside Harambee House. Beyond vague hints that they discussed changes to the Constitution, it is not clear what else they agreed and especially what, if anything, Mr Odinga was promised to de-escalate the revolt he had stirred up against Mr Kenyatta.
Politicians are rarely reticent about the pacts they make so it seems likely there was more than politics on the table. Mr Odinga has since become vocal about constitutional change, pressing for three-tier devolution and parliamentary government, a system he once embraced and then ditched during talks on the 2010 Constitution. It looks like a referendum campaign is now in works.
Mr Odinga is right to descry the weaknesses of the presidential constitution that he helped midwife. Should we take his word uncritically? I think not.
First, his talks with Mr Kenyatta were cynically opportunistic: Mr Odinga’s popular revolt had threatened to immolate Mr Kenyatta’s legacy whilst Mr Odinga, abandoned by his co-principals, looked like he could lose control of his militant base. Caught in a dead end street, neither of them had good options.
Second, Mr Odinga’s early proposals look like jobs for the boys, not a good faith effort to remedy the defects of the Constitution. He wants the Bomas Draft enacted but has not interrogated its essentials, including, for example, whether it makes sense to subject a ceremonial president to a popular vote as the draft had proposed. Would it not be better to adopt the Israeli system from 1996 to 2001 in which the executive prime minister, but not the ceremonial president, had to win a popular mandate? In any case, a prime minister is not essential to a parliamentary system: It can have a president chosen by parliament, like South Africa, and still be a parliamentary system.
Mr Odinga’s three-tiered devolved system in which 14 regional governments are slotted in between the national government and the 47 counties is incoherent and unworkable. Powers are either national or local. Local powers can then be decentralised as low as is thought necessary. If Mr Odinga’s 14 regional governments become the units of devolution, county governments would cease to be autonomous and become organs of regional government, exercising powers delegated to them by the region. If that is Mr Odinga’s proposal, it will flop; counties are too entrenched to be easily re-organised under a new system of shared powers. Mr Odinga, usually a shrewd politician, is underestimating the power and influence of governors.
Though re-organising the Executive is Mr Odinga’s and Mr Kenyatta’s main interest, it won’t work unless tied to changes in Parliament. In a parliamentary system, the prime minister is removed if he loses a vote of confidence. How should that vote be organised in a two-chamber parliament such as ours? In Italy, a tenth of the members of either House can initiate a vote of confidence. It then must have the support of both Houses to remove the prime minister. Italy also allows votes of confidence against individual ministers. Germany has a different system; the constructive vote of confidence.
When a vote of confidence is called, the opposition must propose someone to replace the targeted Chancellor. This means that there cannot be a “no confidence vote” unless there is also a majority supporting the replacement. Sometimes the Chancellor’s party, rather than the opposition, calls for the vote. If it does and the vote is lost, the Chancellor need not resign and may, instead, ask the President to call a general election. The President has discretion not to.
A poorly designed vote of confidence can make governments shaky. Italy’s relatively easy to call vote of confidence and its fragile coalitional politics make for very unstable politics: Italy has had 66 governments since 1946, an average of one government every 16 months. Compare Italy’s 66 governments with Germany’s 19 over the same period. It is clear that how coalitions are formed and the confidence vote designed matters a great deal.
Re-organising parliament should include a review of the powers and mandate of the two chambers. Sentiment in the National Assembly is that the Senate should be abolished. Senators return the compliment with the argument that the number of MPs should be cut down. The Senators have a point. The National Assembly is bloated to no purpose. A big assembly makes sense only if needed to make representation effective. Given that Kenya has 47 counties in which members of the county assemblies represent rather small wards, there is no compelling argument for a large number of constituencies. Parliament should have a combined 250 Senators and MPs, not the 357 it now has.
Along with limiting the number of representatives, the mandate and functions of Senate should change. If the Senators’ only job is – as MPs argue – to protect counties, Senators ought to be elected by county assemblies. Candidates would be shortlisted by County Executive Committees, CECs, and then elected by MCAs. I would prefer to keep the current system of directly elected Senators. If so, then the Senate should be made a full legislative chamber equal to – or more powerful than the National Assembly.
Mr Odinga laments the failures of the electoral system but says little about how it should be reformed. Elections have been controversial, even violent since 1992. As designed, the electoral system fails on all counts: It achieves neither proportionality nor full representation. It has too many legacies of the winner-take-all system that we had till 2010. A Mixed Member Proportional representation system that combines constituency MPs along with additional members elected from a list pre-announced by the political parties during nominations had been proposed in 2002. It was never adopted. At a minimum it should be debated. We should also consider adopting preference voting – or the instant run-off – if we vote to retain the presidential system. In an instant run-off, voters make choices by ranking the candidates on the ballot. The voter puts a 1 next to their first choice candidate, a 2 next to the second choice, a 3 to the third and so on. If the first choice candidate is not elected and no candidate receives half of the vote, we look at the voter’s second preference. There is a two-fold point to this “instant run-off” system. One, it avoids expensive repeat elections. Two, it ensures that the most preferred candidate is elected. This system – used in Australia, Ireland, Malta and other countries – ensures that the winner gets an absolute majority of the votes not merely a simple majority. Preference voting also moderates politics. Candidates know that they are more likely to win if they can maximise the 1s and 2s that they get. That gives them an incentive to broaden their appeal beyond their ethnic base.
In reforming the electoral system, it also makes sense to reduce the size of the electoral commission, to make it a commission of three not seven or nine. A small number removes wrangling over ethnic representation. When there are many positions on offer, Kenya’s large ethnic groups believe that they must be represented and the appointment of commissioners deteriorates into ethnic and confessional horse-trading. It is unstated but a large commission must have a position for a Kikuyu, a Luhya, a Kalenjin, a Muslim and a representative of the pastoralists. With a commission of three, politicians will have to look into competence rather than identity.
No one – not even Mr Odinga’s ardent supporters – has spoken about strengthening Chapter Six of the Constitution, the flagrantly disobeyed provisions on integrity. It can be strengthened by enacting a Kenyan version of the old Roman Law of Damnatio Memoriae also known as the law of the condemnation of memory. The damnatio law created a form of communal dishonour. On a vote by the Senate traitors and others who had dishonoured Rome were not to be remembered. Their names were torn from monuments and any statues erected in their honour were destroyed. The threat of suffering eternal oblivion encouraged good behaviour: Many Romans feared the second death from this condemnation than they feared physical death. A Cultural Dishonour and Communal Curse Amendment to Chapter Six could achieve what the EACC noisy showmanship has failed to: Create a socially relevant sanction that politicians actually fear.
When a corrupt leader leaves office, “a vote of dishonour and communal curse” could be passed against him or her. The person would then be stripped of any national honours and awards that they got while in office and any schools and monuments named after him would be renamed.
What this says is that there are critical constitutional questions to be addressed not merely power-sharing between the Odingas and the Kenyattas. But it is crucial that these questions should not be left to politicians. Mr Odinga and Mr Kenyatta are mostly concerned about interests that are personal and narrow, their rhetoric notwithstanding. They may proclaim and promise us constitutional utopia but they are responsible – even if indirectly – for the dystopia we now live in. We trust them at our own peril.
The writer is a constitutional lawyer