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Build consensus to avoid messy referendum

Sunday September 15 2019

REFERENDUM

Eldoret residents sign Thirdway Alliance Party's Punguza Mizigo petition on October 26, 2018. The party seeks constitutional amendments. PHOTO | FILE | NATION MEDIA GROUP 

KIVUTHA KIBWANA
By KIVUTHA KIBWANA
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Both the ‘handshake’-driven Building Bridges Initiative constitutional proposals and the Ugatuzi submissions promoted by the Council of Governors, the Senate and the County Assemblies Forum are likely to be unveiled soon.

Thereafter, together with the Punguza Mizigo recommendations by the Thirdway Alliance, these proposals will be subjected to public debate.

Recently, the civil society led by former Chairman of the Constitution of Kenya Review Commission, Prof Yash Ghai, opposed constitutional changes, identifying the country’s political malaise as ruling class antipathy to constitutionalism rather than inadequacy of the current constitution.

If the constitution remains as it is or Punguza Mizigo carries the day, then the current presidential system will be perpetuated.

Pro-change advocates argue that fiercely contested presidential elections in an ethnically fragmented country (for example in 2007 and 2017) will continue to produce conflict and bloodshed in a scenario where it is not easy to identify an undisputed winner and the winner-takes-it-all.

INCLUSIVE POLITICS

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From public discussions, Ugatuzi and Building Bridges Initiative are proposing the switch to a parliamentary system.

This means national executive powers will be shared between the president and prime minister as head of state and head of government respectively, thus diluting presidential powers and thereby safeguarding devolution.

Supporters of the parliamentary system argue that the perennial exercise of executive power in the national assembly produces accountability since the prime minister rules “on his/her feet” in the course of national assembly debates.

Under the parliamentary system, a president is not usually directly elected by the people but instead by a college of elected leaders.

Also, the prime minister is the leader of the majority party in the national assembly or lower house or the leader of the majority coalition.

To the extent that parliamentary elections in Kenya are not controversial, arguably a parliamentary system will not lead to the endemic post-election bloodletting.

The Building Bridges Initiative supporters have argued that a parliamentary system will entrench inclusive politics because the already fragmented executive positions will be distributed among elite representatives of several ethnic groups.

PARLIAMENTARY SYSTEM

Still these ethnic baron-led coalitions must mobilise their ethnic supporters towards nationhood if real political inclusiveness is to occur.

Further, a commitment of these leaders to devolution-inspired developmental inclusiveness will be the panacea for stability, modernisation and prosperity.

Kenya’s 1963 independence constitution created a parliamentary system in which Jomo Kenyatta became the first prime minister.

It was after Kenya became a republic in December 1964 that the office of the vice president was established.

The Bomas draft adopted by the National Constitution Conference in 2004 recommended a parliamentary system but with a president as head of state and a deputy president.

The prime minister was head of government. Strictly speaking then, consensus at the outset had been developed around a parliamentary system.

In the debate about whether Kenya should adopt a parliamentary or presidential or hybrid system, the most critical question is: under which system would devolution thrive?

DEVOLUTION

At independence, centralised power vanquished regional governments.

Today, many county functions are being performed by the national government.

Since the parliamentary system is more amenable to accountability, devolution is likely to enjoy more protection under such system.

The parliamentary system cannot flourish absent robust national political parties.

In most parliamentary democracies, there exists two major political parties. In 2007, the major parties in Kenya were PNU, ODM and ODM Kenya.

In 2013, Cord and TNA/URP could have emerged as the two major formations, whereas in 2017 Nasa and Jubilee were the main formations.

The continued existence of multiple regionally-based political parties will thwart the proposed parliamentary system.

Success will depend on the extent to which the political elite commits itself to genuine coalition building around clear ideological lines.

Fringe parties will nonetheless become occasional important players in coalition formation.

NATIONAL PARTY

Were the ruling party to split into Jubilee A (TNA) and Jubilee B (URP), each segment can still be the nucleus of a national party.

Clearly as of now, ODM has the features of a national party. The current Jubilee is the foremost nationally inclined party if it survives infant mortality.

Wiper party, Ford-Kenya and ANC could merge or enter into coalition with each other or the above political outfits.

If a “handshake party” ever emerges, it would in size replicate the original TANU/CCM of Tanganyika/Tanzania and ANC of South Africa.

President Uhuru Kenyatta is the de facto undisputed political leader of Jubilee A, and of course the de jure leader of the Jubilee Party.

As Francis Kimemia, Maina Kamanda and Anne Waiguru have repeatedly stated, in due course he will lead the Mt Kenya region in coalition building.

Those seemingly opposed to him will eventually return home as has historically happened in Central Kenya politics.

COALITION BUILDING

In Europe’s parliamentary democracies, governments have in recent times become relatively unstable. They routinely fall.

Coalition building in Kenya’s proposed parliamentary system must be accomplished above board. Political infidelity or lack of political hygiene will become extremely expensive.

If consensus is built around the parliamentary system, then current presidential candidates will have to go back to drawing board as universal suffrage for the presidency is likely to be abolished in favour of election by a college.

However, the question whether Kenyans will forego the right to universal suffrage for national executive positions must still be settled.

In a parliamentary system, the position of official opposition is a key national office. The leader of the opposition is the prime minister in waiting. This office must be constitutionally protected.

Ultimately, the three constitutional reform initiatives and any other will have to build consensus among themselves to avoid a messy three-way referendum.

When the constitutional reform initiatives are exposed to public participation within a referendum legal framework, the people will decide whether they want constitutional change and, if so, of what nature.

Prof Kibwana is Governor of Makueni County

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