The Building Bridges Initiative (BBI) team is about to release its latest report. But apparently, it is no different from the one released at Bomas of Kenya in November last year. All indications are that the BBI is stuck exactly where the 2010 Constitution was stuck during drafting in Naivasha – on the issue of whether or not to have a prime minister.
If the BBI team cannot resolve this issue, then they have not only wasted theirs and Kenyans’ time, but have also squandered money and other resources that could have been used to do better things in this country.
At the core of the clamour for constitutional change – for which Kenyans have suffered and some even died – was the question of an imperial presidency. Kenyans wanted to tame the president; this issue was at the core of the Bomas initiative that finally settled on a president and an executive prime minister. In short, a pure parliamentary system. This appeared to be the view of most Kenyans and it was therefore sad that the idea was killed when Members of Parliament met in Naivasha to produce a consensus document that finally led to the 2010 Constitution.
Now, 10 years later, we are at it again. President Uhuru Kenyatta has called it a constitutional moment. In essence, we are trying to do through the BBI what we were unable to do in the drafting of the 2010 Constitution. We did not solve the question on the structure of government. And, indeed, there are those who believe that the electoral challenges we now face, including violence, are the cumulative result of what has come to be known as winner-take-all politics. The BBI will have achieved nothing if it does not address this matter of how best to calibrate the executive and state power. And as long as the team continues to engage the lazy gear, it will not make any significant progress.
In a proposal I presented to BBI, I have what I consider to be almost the only way out. Here are the highlights:
Structure of government
Kenya will need to borrow heavily from the British and other constitutional monarchies, with the necessary adjustments, so we can strike a balance between the overwhelming clamour – and perhaps need – for the post of prime minister, and the complicated reality of having to share power between the president and a prime minister. The problem is created by having a president elected through universal suffrage and ceding his power to a prime minister nominated by handful of legislators.
The political reality in Kenya is that we have a president who, even by the demands of the citizens, is forced to be everywhere. A lot of what the president does is actually ceremonial, including all the functions he performs as head of state and commander-in-chief. It is therefore obvious that the president has little time to attend to the functions of government.
The best way to solve this problem is to have a clear demarcation that separates the office of the head of state from that of the head of government. In such a structure, the head of state would have absolutely nothing to do with the running of government. This is how a constitutional monarchy works – the monarch enjoys all the trappings of state power but does not interfere with the working of an executive prime minister. In fact, the only time a president can be removed from office is if he tries to interfere with the running of government.
For such a structure to work in Kenya, we would need to have an imperial presidency (without term limits) with all the trappings of power. This means the president would be elected by universal suffrage as provided for in the 2010 Constitution except that he would not be a member of a political party. As head of state, the president must remain strictly neutral with respect to political matters.
The president would perform the following functions: invite, through an elaborate state event held at State House, the person nominated by the National Assembly as prime minister to form the government, and receive and accept resignation from the prime minister. The same would apply in the event of a vote of no confidence in which case the Speaker of the National Assembly would notify the president. The head of state would also appoint ambassadors, high commissioners, diplomatic and consular representatives; receive credentials from foreign ambassadors, high commissioners, diplomatic and consular representatives; open each session of Parliament and assent to all bills; give an annual address to each of the regional assemblies; confer honours in the name of the people and the republic.
The president would also, in consultation with the prime minister and with the approval of Parliament, declare war and/or a state of emergency; have the power of mercy; address national days and other state events; be the sole occupant of all the state houses and lodges in Kenya, which should all be at his disposal (every region should have at least one); preside over the swearing in of regional governors through an elaborate ceremony held at the nearest state house/lodge to hand over the instruments of government and power.
In addition, the president would have no power to dismiss the prime minister, or in any way interfere with the running of government. He would not be impeachable or be sued for civil or criminal offences while in office. He would have two deputy presidents as principal assistants (first and second); he would be the nominal head of the Public Service and all letters of appointment would bear his logo and seal of authority. The president would also, in consultation with the Senate and the prime minister, decide foreign policy.
The prime minister would be the head of government and the cabinet. As such, he would be nominated by Parliament on the basis of having the majority in the National Assembly or in a party leading a coalition of parties with majority representation in the National Assembly. The PM would perform the following functions: set the agenda for government to be executed by the Public Service; serve as the head of cabinet; nominate and dismiss cabinet secretaries and other government officials; update the president on the state of affairs in the country; represent Kenya internationally.
The PM would also be responsible for all the government’s decisions and policies; manage, oversee and organise the work of government departments and agencies; be an active participant in the National Assembly – occasionally be available for debates and answering questions from Members of the National Assembly; be the link between the president and the government and, in consultation with the Senate, recommend to the president peer members of the Senate.
It is obvious that without the boldness required to clearly demarcate state and government operations, we will never sort out the problems Kenya faces. And to the extent that fusing the functions of state and government has brought us to where we are today, any constitutional changes must find a sharp knife and separate the two.
Public Service
The Public Service should be a powerful bureaucracy that exists in perpetuity, meaning it is not interrupted by successive governments. It would be the sole employer of all public servants in both the national and county governments, and all state corporations. This would make it a professional entity and help to check corruption and nepotism, and ensure that it is not bloated by over-hiring of staff.
Senate and the devolved structure
The BBI team should consider having the Senate as the Upper House. As such, it would conduct the trial of a prime minister who has been impeached by the National Assembly; have power to vet and veto designated appointments and national commitments such as treaties and conventions; conduct investigations into wrongdoings in the executive; receive and approve bills from the National Assembly and decide which bills to give automatic approval, and which ones to subject to debate and voting.
Membership to the Senate should include persons elected from the regions, former regional governors, long-serving senators, career public servants and former diplomats, all selected through a Senate peer review mechanism. For example, anyone who has successfully served four terms as a regional senator gets automatic entry to the National Senate. And anyone who has served two terms as governor, on approval of the National Senate, can be nominated to the Senate.
The National Assembly would be the legislative arm of government and be responsible for oversight and raising revenue expenditure. It would also approve all taxation and revenue-raising measures brought before it by the prime minister.
On Devolution
Devolution should be a way of nurturing leadership. This can be achieved by establishing regional governments with regional assemblies and senates to provide a pool of Kenyans transitioning from regional leadership to national leadership.
The counties as currently structured are too small to be viable political and economic blocs. Having identified this problem, counties have aligned themselves into regional economic blocs that could be used as regional governments. But there might be a need to increase these regions from six to maybe 14 as has been suggested by others. However, the current counties can be retained and aligned to the regional governments. A regional government would constitute governors and regional senators.
In conclusion, it is obvious that without the boldness required to clearly demarcate state and government operations, we will never sort out the problems Kenya faces. And to the extent that fusing the functions of state and government has brought us to where we are today, any constitutional changes must find a sharp knife and separate the two. When this is done, anyone eyeing the position of prime minister would do so because they have a vision that they can only actualise if given the infrastructure of government.
To understand this clear demarcation, one must go back and ask a fundamental question: Why do people run for office at the national level? Why would anybody run for the office of president? Why would anyone fight to become prime minister?
The answer is that there is prestige in being the head of state, and there are people willing to even die to attain such a position. In some countries, the monarch is a near god. This kind of power of monarchical power can be found, for example, in Japan, or in the United Kingdom where the queen’s power even extends to other places in the world. In America, the president enjoys the prestige of using Air Force One, the Beast, the White House and Camp David. Above all, he is the man with the codes to launch the nuclear weapons. And you can cascade this prestige down to the president of even the smallest and most backward nation in the world.
But there is also prestige, power and honour in being given an opportunity by your country to serve it at the level of government, such as at the level of prime minister or chancellor. The prime minister has the honour and opportunity to implement policies and programmes that could transform the country as well as an opportunity for self-actualisation and legacy building. History is full of examples of men and women who used the position of prime minister or chancellor to propel their countries to great heights.
If BBI, and indeed Kenya, won’t be bold enough to realise that as much as there is power to be enjoyed at the level of head of state, there is also much work to be done at the level of government, then we will still be talking about constitutional change in another 10 years.
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