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November 20, 2017

To amend or not to amend? How the Constitution is supposed to work

President Mwai Kibaki shows off the new constitution with a national seals during the promulgation of the new constitution at Uhuru Park 27-8-10.He is flanked by Attorney General Amos Wako Photo/File
President Mwai Kibaki shows off the new constitution with a national seals during the promulgation of the new constitution at Uhuru Park 27-8-10.He is flanked by Attorney General Amos Wako Photo/File

 

People have suggested that we need to amend the Constitution, including adopting a parliamentary system, or a “hybrid” system (somewhat like the French).

The motive tends to be to defuse the tensions created by elections, by reducing the focus on one office, that of the President. Some would say the Constitution gives too much power to the President, perhaps remembering how people used to criticise the old Constitution because it had created an “Imperial Presidency”.

We have much sympathy with these views, but it is worth thinking about how our Constitution is operating, and whether the problem is really with its design. After all, the basic design of our system of government is based on that of the US, which has had had fundamentally the same system since 1787. It can’t be all wrong!

 

THE US CONSTITUTION

“Checks and balances” are the key feature of the American constitution that is supposed to keep the powers of the president in check. He (there has never been a she of course) cannot overstep the mark too far because he needs Congress (the legislature) to approve his expenditure and laws, and Congress can remove a president who is guilty of serious misbehaviour by the process called impeachment.

Congress can be held in check to some extent because the president must sign the laws it passes – and can refuse to do so.

The president, his administration, and Congress, can be held in check if they violate the constitution, because their acts can be challenged in the courts.

And the courts are protected from capricious dismissal, but should be deterred from excesses by the threat or removal by the Senate.

Laws must be approved by both houses of Congress, and the Senate often does not have the same party make-up as the House of Representatives. The latter quite often does not have a majority of the same party as the president. The system is designed like that: Halfway through the president’s term of office there are Congressional election that may change the party make-up of Congress. 

The federal system with 50 state governments — many not supporting the president’s party — with powers over many areas of government, and resources, means that the President is not all-powerful.

 

KENYA

President Uhuru Kenyatta (President Jomo Kenyatta probably had no such complaints once he had changed the Constitution to make himself the Lord High Everything) has sometimes complained he does not have enough power. Others say he has – or wields – too much.

Yet we have a plethora of checks and balances in our Constitution — even more than the US. We have three branches — the Executive, the Legislature, with two Houses, and our Judiciary, which is more independent than in the US, where the Supreme Court is divided between two political camps. And our Constitution defines the President’s responsibilities in considerable detail.

We even have an extra arm of government — independent commissions. Their appointment process was designed to be a balance: Generally, their members are identified by a competitive process, selected by an independent body, but approved by Parliament. So no-one should feel commissioners “belong” to them, and they should have the qualities, and the confidence, to act in the national interest. 

And we have a devolved system, bringing government closer to the people, though not in as many ways as in the US.

 

REALITY

Every system will have its challenges, even in the US. But ours does seem to have more.

For example, US Presidents make Executive Orders, which sometimes seem excessively broad. But if they try to step beyond their powers under the Constitution or the law made by Congress, the courts will stop them as we saw with President Donald Trump’s first “Muslim ban” orders.

American Presidents are not supposed to declare war without the approval of Congress, but it is surprising what they can do despite not being at war — like what we call the Korean and Vietnam wars, or joining NATO strikes against Muammar Gaddafi’s Libya.

Coming home, one problem seems to be that Parliament does not stand up to the President enough. This is a problem with parliamentary systems, too, because by definition, the head of government (usually the Prime Minister) has the support of a majority of members of Parliament. But it often seems that our parliamentarians do not put enough effort into thinking through their roles and responsibilities in law making, budgeting and supervision of government.

Unfortunately, our Constitution makes it too easy for the President to force Parliament into enacting what he wants. If he does not like some aspect of a piece of legislation Parliament is debating, he just waits until it is passed, and sends it back with a memo saying what he really wanted. Parliament has never managed to muster the two-thirds majority needed to override the President’s view. In the US, if the President sends a Bill back, it dies. So, if he really wants something, he has to make the effort to persuade Congress.

Because Kenyan Presidents have sometimes just sat on Bills, our Constitution says that if the President does nothing with a Bill for 14 days, it becomes law. This played into President Uhuru’s hands recently: He said he did not want to appear to be shifting the goalposts over the presidential repeat election, and so, he did not sign the Bill amending the election laws. Without having to sign it, the Bill became law. How convenient!

The President does not always respect the limits on his powers. For example, he sometimes issues instructions — not in writing and gazetted like US Executive Orders — including to officers and bodies over which he has no command, like the police. Sometimes he drags his feet when he is supposed to take a purely formal action such as appointing judges.

Each county (like the American states) has just one vote in the Senate. But ours is given far less power than the US Senate, so is much less of a balancing body.

 

SO WHERE DO THE PROBLEMS LIE?

Clearly, our Constitution has some drafting problems. Some are because of the precipitate way a parliamentary design was changed to a US-style presidential system, at the instance of some who now want a change. Some excessive presidential powers are relics of a scheme to give a largely ceremonial president some moderating powers in the public interest.

But every system has problems. The US constitution is not perfectly clear. Indeed, their constitution is not just a single document, but 230 years of court decisions as well, sorting out what the constitution means.

Good provisions have unexpected consequences (such as ours about what happens if the President does not sign a Bill into law).

More important is the use to which the provisions are put. There is too much of a tendency to put self first. MPs think that their power to approve independent commissions is for their benefit (see how they want the new Salaries and Remuneration Commission to be more friendly to them – give them more money). Senators view governors as rivals when they are supposed to be supporting devolution. Many commission members seem to think they represent the president (or perhaps the opposition). In other words, too many in public life have not accepted the radical changes the constitution was intended to bring.

Be assured that whatever changes we make to the constitution — however much some are desirable — we shall find new problems arise, and many of them will be because of selfishness on the part of those operating the constitution.

It is not because Americans are better than Kenyans. It’s because if they act in a self-centred way, there are consequences. They will not be elected; or they will be impeached, or if they commit a crime they will be prosecuted. When these things happen here, then things will change. We cannot rely only on a few brave judges to fight the battle for the realisation of the promise of the constitution.

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