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November 12, 2018

Manifestos: NASA’s proposal for radical constitutional change

NASA Presidential Candidate Raila Odinga with his principals (from L) Isaac Ruto, Kalonzo Musyoka, Musalia Mudavadi and Moses Wetangula during the launch of the Manifesto in Nairobi on June 27, 2017. Photo/Jack Owuor
NASA Presidential Candidate Raila Odinga with his principals (from L) Isaac Ruto, Kalonzo Musyoka, Musalia Mudavadi and Moses Wetangula during the launch of the Manifesto in Nairobi on June 27, 2017. Photo/Jack Owuor

 

 

There is a tendency to treat party manifestos as a waste of time.  Most Kenyans think that no party is going to respect the manifesto if it wins.

But they are — or should be ­— important. It is important that the voters have some idea of what parties promise. When a party is in government, its manifesto promises can be used as a mobilising tool, providing a basis for demanding that it take certain action. And when the next elections come round, people should be asking whether the government actually did what it undertook to do.

 

WHAT DO THEY HAVE TO DO WITH THE CONSTITUTION?

Our concern — for the purposes of Katiba Corner — was with how far the manifestos show concern with and understanding of the Constitution, and a commitment to implementing it. Jubilee mentions it four times and the Thirdway Alliance Kenya 11.

It is unnecessary to count the references in NASA’s manifesto because it makes the Constitution central. Its foreword even says, “Even the most casual glance will not fail to notice that our platform is the Constitution of Kenya 2010. We are the Coalition of the Constitution”. There is much emphasis on the national values, found especially in Article 10. In fact, so familiar will this approach be to readers of Yash Ghai’s columns here, that we feel obliged to make a disclaimer: No Ghais were involved in the preparation of the NASA manifesto!

We hope to return to some issues of the Constitution as revealed in the manifestos, whether explicitly or not, in some later Katiba Corner. Here, however, we consider an issue that has attracted some attention in the press.

 

NASA’S PLAN TO CHANGE THE SYSTEM OF GOVERNMENT

NASA proposes to amend the Constitution in a significant way, introducing what it describes as a “hybrid system”, as in the Bomas (National Constitutional Conference) draft Constitution. They say this would enhance cohesion, be more inclusive (as opposed to the current exclusive presidential system), give a chance to people from smaller communities to attain the highest office in the country, and encourage power sharing.

Bomas proposed what is usually called a parliamentary system. It would have been more like the system Kenya had in 1963 — before the first President Jomo Kenyatta decided that he wanted more power than he had as Prime Minister, and persuaded Parliament to change the Constitution.

In a parliamentary system, the people elect a parliament as we do now. But the head of government (the Prime Minister) is not separately elected by the people. He or she must be a Member of Parliament (of the National Assembly in our case). If one party gets more than half the seats, that party’s leader will be Prime Minister (PM). If necessary, the leader of (probably) a large party may form a coalition or agreement with one or more other parties to ensure enough support.

The really important characteristic of a parliamentary system is that the government remains in office only so long as it has the support of the people’s representatives in parliament. If a vote of no confidence is passed by parliament the PM must resign. The Bomas draft included this.

In most parliamentary systems, the ministers (now called Cabinet Secretaries) are also MPs. Bomas proposed that the Ministers would be members of the National Assembly, but that the Senate would have to approve them.

 

HEAD OF STATE IN A PARLIAMENTARY SYSTEM

Parliamentary systems usually have a separate head of state — a queen/king or president. Sometimes that head of state has no real power, but formal functions only. Sometimes he or she has some powers that might be used to exercise a bit of control over the government if they are behaving unwisely or even becoming oppressive.  The functions of the head of state are also usually thought to include being a national symbol of unity, and maybe a voice of reason and sound advice based on personality, experience and moral authority. It can be useful to have someone to perform the ceremonial functions, leaving the PM to carry on the serious business of government.

Heads of state in parliamentary systems are (if not hereditary) usually chosen by parliament. The Bomas draft was a bit unusual because it proposed that the president should be directly elected by the people. This is the arrangement in Ireland, where it is felt that this gives the President some extra strength as the people’s choice, even when the legal powers of the office are not great.

Bomas also would have given the President some extra powers. She [why not?] would have had the power to propose to the National Assembly a vote of no confidence in the Prime Minister. She would annually address Parliament on the progress achieved in the realisation of the national goals and values. She would have annually reported to Parliament on how far the country had achieved its international obligations— ­these would be mostly about human rights and the environment. She could have proposed new laws to Parliament.

All these functions would give the President the power to make his or her own decisions or judgments, not just to do what someone else says. They are quite unusual. But they do not go to the extent of allowing the President to make governmental decisions. They are all about helping to keep the government, and parliament, on the right track — checks and balances. For this reason it is not quite correct to describe this as a “hybrid system” as NASA does. That description is better reserved for systems like the French where the Prime Minister and the President both make decisions about governmental policy and action. 

The Constitution of Kenya Review Commission, Bomas and the Committee of Experts all proposed a system rather like this. You can see why NASA might favour it. A political party in the current Kenyan context is unlikely to form government alone. It will either be a sort of composite party, or form a coalition after elections. With a parliamentary system it could offer important roles for people from these various,  “ethnic” groups — the Bomas’ draft included two Deputy Prime Ministers as well as fifteen to 20 ministers plus deputy ministers.

Another possible benefit is that the system focuses less on the single “top dog” role of President, perhaps making elections less of a “do-or-die” affair.

 

SO WHY IS THIS NOT THE SYSTEM WE HAVE?

Partly, people find it hard to imagine a different system and perhaps they saw this as something unusual (though parliamentary systems are found in over 60 countries in the world). After the national coalition government of Mwai Kibaki and Raila Odinga following the 2007-08 post-election violence, people seemed less enthusiastic about a parliamentary system. 

The Parliamentary Select Committee reviewing the Committee of Experts’ draft actually changed a basically parliamentary system to the current US-style presidential one. And, though we do not know the detailed dynamics of that meeting, it seems clear that ODM went along with it — and cheerfully. The suspicion was that they then believed that ODM could win the presidential prize. This was despite what had seemed to be the life-long commitment to a parliamentary system of people like Raila , and even of our current Deputy President, as he professed at a meeting during Bomas.

 

CONCLUSION

It must be clear that Yash Ghai has tended to favour a parliamentary system. It does not necessarily follow that it makes sense to make another radical constitutional change at this stage. Sometime the important thing is to make the constitution you have work rather than to try tinkering with it.

And – a word of warning: It is not unusual for people who have argued, even fought, for a new system of government, to change their minds if they manage to get into power under the old, once maligned system. After all, they seem to think, if they got into power through this system, maybe it’s not so bad!

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