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January 21, 2019

Could 2002 Draft Have Saved Us From Current Problems?

I often wonder whether CKRC's 2002 draft had been accepted by the powers that be, we would be facing the current problems of intense and hostile ethnicity, and with election results, fraught as always, dependent almost entirely on ethnic partnerships.

Then as now, dominant political, economic and social problems were connected to ethnic competition and the fight to seize the apparatus of the state. Now as then, the capture of the state is central to the often illegal accumulation of wealth. Perhaps over 90 per cent of our politicians are driven by greed, as is evident from the making and breaking of alliances. A large group of hangers on emerge, favoured by contracts and other forms of state largesse.

The ethnic base of accumulation leads to the intensification of ethnic networks, as a new class of business and professional people develop a vested an interest in the ethnic control of the state.

To this selfish interest in ethnic control is added the more “primordial” emotions of the mass of the tribe, manipulated and harnessed by the elite. In due course, as Marx would have predicted, the hangers on become the real wielders of power, politicians increasingly junior partners.

I was not sure at the time of the CKRC that Kenya had reached that stage, but it is clear that it is the direction in which the country has moved since then.

The relationship between state officials and corrupt businesspeople (including drug barons as is widely believed) is a defining characteristic of our politics (underexplored by the media or civil society).

We have entered the age of the multi-billionaire politicians and presidents. No room here for the poor or even the moderately well off candidates, however committed and talented.

To some of us in the CKRC, the fundamental problem facing the country was less ethnicity than the state with its roots in the colonial exploitation of the people and their resources.

The post-colonial state operates not by consensus but coercion, dependent on police and other armed forces, helped occasionally by private militias, just as when Britain ruled us.

The true character of most African states, as of Kenya, is manifested best in its colonial type laws, attitudes and practices. It was clear that several aspects of the state had to be transformed, to achieve the objectives of the constitution review, including the abolition of graft and coercion, and the building of Kenyan identity and solidarity.

However, in this article I want to focus on three aspects of the CKRC draft: the restructuring of the central government, a fundamental change in the electoral system, and the dispersal of state power through devolution.

Kibaki’s government, supporters of the draft when in opposition, but in government by the time of Bomas, opposed all three (as is evident from the so-called Wako Draft of 2005, promoted by Kibaki but rejected by Kenyans).

There were (and are) major problems with the structure of government. Its principal feature was then an executive president under which the “winner took all”.

Associated with this regime was the control of the state by one tribe; and the exclusion of numerous communities, especially those who questioned the arbitrariness of the government.

Vast powers were vested in the President which allowed him to dominate all spheres of the state, including the Judiciary. The President enjoyed the widest possible immunity from legal proceedings.

The CKRC recommended the replacement of the Presidential by a true parliamentary system. The parliamentary system is a collective form of executive allowing the participation of various parties and regions. Voters do not elect the government but their representatives who then negotiate the composition of the government.

For these reasons, elections are – or can be –less fraught than they have been in Kenya. Although the parliamentary system can produce powerful prime ministers, it tends to be more accountable, as the prime minister and her colleagues face questioning daily; and the opposition is likely to have more influence than in the presidential system.

The parliamentary system received the endorsement of Bomas and the Committee of Experts but was thrown out by political parties at their disastrous meeting in Naivasha.

The second reform proposed by the CKRC was the adoption of a proportional representation electoral system. Such a system facilitates the representation of parties in proportion to their support among the electorate.

Minorities are more likely to be represented than in the first past the post system as in Kenya. Since few votes are wasted (unlike the situation in Kenya), parties have an incentive to appeal to every group and community, and to espouse moderate policies. Coalition governments are more likely under this system than now.

The third reform was the devolution of power by breaking up of the monopoly of the central government, and to lessen its capacity to punish recalcitrant provinces or districts.

There were other objectives too: greater democracy, more responsiveness and accountability to the people, and increased economic developments. The CKRC was divided between those who wanted no more than about 10 devolved units and others who wanted the 75 districts or so to be the units.

The larger the number of units the weaker they are likely to be vis-a-vis the central government. Let us see what happens with the 47 units we have now—perhaps still too many.

Devolution can achieve a great deal—politically, economically and socially—but it can also go seriously wrong. But the presence of political and administrative power at various centres throughout the country makes more acceptable presidential powers at the centre—if the national government will resist the temptation (already evident) to control county governments. 


The writer is a director at Katiba Institute.

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