Every so often, Kenyans are taken to task about the need to grow and respect institutions. The durability of our democracy is said to be dependent on moving away from the hyper-personalised politics and governance of the day and towards developing and empowering agencies that regulate and mediate the exercise of power.
However, of late, there has been push back from folks insisting that the Constitution, by creating such agencies, has made it impossible for the President to actually govern. They claim that the President has been reduced to the whipping boy for all that goes wrong, even though he has little power to change it.
The argument is obviously disingenuous. The presidency is not impotent, as they would have us believe. If it were, it wouldn’t be the most coveted political office in the land. For example, few of our established politicians appear to be breaking down doors to get into or stay in the Senate. Quite the reverse. Many sitting senators are heading for the exit, looking for more lucrative jobs as governors of in the National Assembly, where the real business of eating and national cake-sharing actually happens.
The presidency, on the other hand, sits comfortably and unchallenged at the pinnacle of our politics. The incumbent has made it clear he has no plans to leave, despite his open acknowledgment that he had little to contribute to the war on corruption.
However, his failure to effectively tackle graft has little to do with the purported powerlessness of his office. It is rather a result of both a propensity to defend rather than confront friends and relatives caught with their hands in the till, as well as a concurrent determination to undermine the structure of government envisaged by the
Constitution and to recreate the imperial presidency of the Nyayo era. This is exactly what the Constitution sought to dismantle. However, this is not achieved simply by setting up an array of agencies supposedly outside the control of the presidency. Rather it is about creating institutions. Unfortunately, in Kenya, we make the cardinal mistake of conflating institutions with, and in the process limiting them to, organisations.
Geoffrey M Hodgson, Research Professor in the University of Hertfordshire, defines institutions as “systems of established and prevalent social rules that structure social interactions. Language, money, law, systems of weights and measures, table manners, and firms (and other organisations) are thus all institutions.”
In their insightful book, Why Nations Fail: The Origins of Power, Prosperity and Poverty, Daron Acemoglu and James Robinson, describe institutions as simply the rules, written and unwritten, that influence how systems work. While the language may be different, the intent is essentially the same. Institutions are about the way things work rather than merely a set of formal organisations or even formalised rules.
The United States system is a case in point. Americans love to hold up their Constitution as the ultimate defence against tyranny. But while it is true that the formal rules regarding governance it proposes are important, arguably American democracy is built on a foundation of social norms and expectations much more so than formal rules.
For example, the two-term limit for Presidents was not part of the Constitution. Rather, it sprang from George Washington’s decision not to run for a third term and held for the better part of a century and a half until Franklin Roosevelt violated it in 1940.
In fact, it was not until 1951 that the US Constitution via the Twenty-Second Amendment finally imposed term limits. Similarly, the fundamental role the Supreme Court plays in assessing the constitutionality of legislation is not expressly provided for in the Constitution either.
It is for this reason that Donald Trump, who will be inaugurated as President today, poses such a big threat to American democracy. During his unorthodox campaign, he violated with almost total impunity many of the norms, if not laws, that have served to keep US politicians in check for decades and centuries.
“The American presidency has never been at the whims of an authoritarian personality like Trump,” John Dean, White House counsel under President Richard Nixon in 1970-73, told McKay Coppins of The Atlantic. “He is going to test our democracy as it has never been tested.”
It is a test whose outcome Kenyans should pay close attention to as we struggle to implement not just the system of governance envisaged in our Constitution but to develop the social norms and attitudes that will underpin it.