{UAH} Edmund /Pojim/WBK: What system of government would be best for Kenya? | The Star, Kenya
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What system of government would be best for Kenya?
Duale said infamously that Uhuru can do no wrong because he is president. The statement is inaccurate but it does depict reality. All Kenyan presidents have enjoyed unlimited impunity—because of the wide powers given to the office and the lack of accountability, combined with enormous patronage powers. I have recounted in the Star several times the violations of the constitution by President Kenyatta, enough to justify impeachment charges. However, the prevalence of presidential power effectively rules out impeachment. Ever since independence, there has been no accountability of the conduct of the president and consequently of his government.
It is ironic, though by no means surprising, that former British colonies should have ended as de facto presidential dictatorships—Britain being the home of parliamentary system of government, where the head of the government is the leader of the party able to mobilise the largest number of MPs—and can also be removed by a vote of no confidence. Of course this is not the way that Britain ruled colonies, where large executive, and at times legislative, powers were vested in the Governor, responsible to no one but the odd minister and bureaucrats in London,and bureaucrats posted to the colony effectively ruled it, – in case of Kenya, in partnership with European settlers. What the independence constitution tried to do was clearly unrealistic—a leap, as the British flag was lowered, from dictatorship to a highly democratic and human rights oriented state.
From colonial to parliamentary rule
However, Britain's confidence in the superiority of the parliamentary system, and the unlikelihood of the Mother of Parliament sitting at Westminster granting independence other than with a parliamentary system, resulted in almost every colony in Asia, Africa and the Caribbean with a parliamentary system (Kaunda somehow managed to negotiate an executive presidential system). Although the system has in principle survived in Asia (in considerable part because well before independence local leaders had been inducted into a parliamentary system), and the Caribbean, it did not last long in Africa, from West to South and East Africa. It may be unfair to say that the reason is that power at independence passed to potential dictators (after all it was Nyerere, not generally considered a dictator, who in advocating not only a presidential system but also a one party system, said that Africa needed, in constitutions, not brakes but accelerators). There was a fundamental error in assuming that a "powerful government" is what Africa needed. Nyerere had of course tamed tribalism, but in most of Africa tribalism ran riot, and the state became the instrument for the dominance by one or two tribes of the rest.
Constitutions as nation building
What these leaders should have emphasised was nation and state building
What system of government would be best for Kenya?
Duale said infamously that Uhuru can do no wrong because he is president. The statement is inaccurate but it does depict reality. All Kenyan presidents have enjoyed unlimited impunity—because of the wide powers given to the office and the lack of accountability, combined with enormous patronage powers. I have recounted in the Star several times the violations of the constitution by President Kenyatta, enough to justify impeachment charges. However, the prevalence of presidential power effectively rules out impeachment. Ever since independence, there has been no accountability of the conduct of the president and consequently of his government.
It is ironic, though by no means surprising, that former British colonies should have ended as de facto presidential dictatorships—Britain being the home of parliamentary system of government, where the head of the government is the leader of the party able to mobilise the largest number of MPs—and can also be removed by a vote of no confidence. Of course this is not the way that Britain ruled colonies, where large executive, and at times legislative, powers were vested in the Governor, responsible to no one but the odd minister and bureaucrats in London,and bureaucrats posted to the colony effectively ruled it, – in case of Kenya, in partnership with European settlers. What the independence constitution tried to do was clearly unrealistic—a leap, as the British flag was lowered, from dictatorship to a highly democratic and human rights oriented state.
From colonial to parliamentary rule
However, Britain's confidence in the superiority of the parliamentary system, and the unlikelihood of the Mother of Parliament sitting at Westminster granting independence other than with a parliamentary system, resulted in almost every colony in Asia, Africa and the Caribbean with a parliamentary system (Kaunda somehow managed to negotiate an executive presidential system). Although the system has in principle survived in Asia (in considerable part because well before independence local leaders had been inducted into a parliamentary system), and the Caribbean, it did not last long in Africa, from West to South and East Africa. It may be unfair to say that the reason is that power at independence passed to potential dictators (after all it was Nyerere, not generally considered a dictator, who in advocating not only a presidential system but also a one party system, said that Africa needed, in constitutions, not brakes but accelerators). There was a fundamental error in assuming that a "powerful government" is what Africa needed. Nyerere had of course tamed tribalism, but in most of Africa tribalism ran riot, and the state became the instrument for the dominance by one or two tribes of the rest.
Constitutions as nation building
What these leaders should have emphasised was nation and state building and the cabinet responsible to parliament.
This proposal generated considerable debate in Bomas with significant support for a parliamentary system and a nominal president. But opposition grew among a section of its former supporters, who suddenly found themselves in office (2002 elections) and the newly elected Kibaki decided, not surprisingly, that the presidential system was an excellent method of governance. Kibaki lost at Bomas but used the old style legislature to sabotage Bomas agreement. His defeat in the 2005 referendum demonstrated that the idea of a parliamentary system still attracted a large majority of Kenyans. The earlier drafts of the Committee of Experts held on to the parliamentary system, but it eventually gave in to the ruling party at the infamous Naivasha meeting. This left devolution as the only device for recognition of Kenya's diversity, but the experience of the last three years shows that this device can be seriously undermined by a hostile national government.
Conclusion
The debate about the merits of the presidential and parliamentary systems has been conducted globally for a long time—each system has its merits and drawbacks. The tragedy about Kenya was the failure or refusal to address the question in the context of Kenya's diversity and history. Ironically, the CoE strengthened the position of the executive president, perhaps through lack of attention, by allocating to him or her functions that Bomas had vested in the formal president—e.g., 'promote and enhance the unity of the nation; promote respect for the diversity of the people and communities of Kenya; and ensure the protection of human rights and fundamental freedoms and the rule of law". Similarly, it passed on the power for the appointment of certain key officers from an apolitical president to the executive president which could seriously threatens their independence. Kenya is now deprived of the politics of negotiations and compromises, assisted or cajoled by sometimes apolitical head of state, that are an essential feature of the parliamentary system--and for national unity, and left with the divisive politics of the executive presidential system.
The author is a director of the Katiba Institute and chaired both the CKRC and Bomas.
http://www.the-star.co.ke/news/2016/05/07/what-system-of-government-would-be-best-for-kenya_c1344791?page=0%2C0
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