It, therefore, came as something of a surprise when, subsequent to the infamous Naivasha meeting in January 2010 between the Committee of Experts and the Parliamentary Select Committee (PSC) on the Review of the Constitution, the decision on a presidential system emerged.
During their internal deliberations, the CoE found the system of government to be one of three contentious issues they would need to address. The PSC, having received the report and the Revised Harmonized Draft Constitution, deliberated on, among other things, the merits and demerits of presidential, parliamentary, and hybrid systems of government based on proposals set out by the CKRC, Bomas, and Wako drafts. The ultimate result of those deliberations was the 2010 Constitution. What remains unclear to this day, however, is the rationale used to arrive at the preference for a presidential system.
Our dalliance with the presidential system has in a very short time produced a host of undesirable results, as has been the case with other manifestations of this system around the world. First of all, is the winner-takes-all aspect, which, in a polarized society such as ours, is deeply problematic. Secondly, the nature of electoral contest it produces tends to focus on a single individual, the presidential candidate, thereby limiting deliberation on ideology, issues of national concern, or on the scrutiny of lower level candidates. Indeed, the electoral victories of populists such as Jacob Zuma and Donald Trump in South Africa and the Unites States, respectively, could at least partly be attributed to this phenomenon.
Presidential systems also have a tendency to promote ethnicity and patronage, further characterised by the wanton misuse of public resources we have witnessed in recent years. Furthermore, this system has, despite attempts at constitutional safeguards, served to empower the executive arm of government at the expense of the legislature. The resultant situation is a Parliament that is increasingly dysfunctional, due to the fact that it is beholden to the Executive. From a legislative perspective, this has proven to have a detrimental effect on the quality of legislation produced: Legislation has tended to be self-serving, narrow in scope, poorly drafted, and therefore ill-equipped to address the issues it seeks to resolve.
Proponents of the parliamentary system, on the other hand, suggest that it is better suited to countries that are ethnically, racially, religiously or ideologically divided, such as ours. Parliamentary systems are also thought to be less susceptible to endemic corruption as a result of strong watchdog committees and political parties that must pay much greater attention to the caliber of their candidates in order to make it to parliament and form government. Furthermore, it is thought that the electoral process in parliamentary systems does not generate the kind of tension and bitterness that is manifest in contests for a single presidential position, where the stakes are particularly high. Parliamentary systems also reduce the likelihood of unsuitable persons ascending to the leadership of political parties, and thus being eligible to head government.
In light of the above, we must therefore ask ourselves: How it is that we came to settle on the presidential system? It would be extremely difficult to argue that it has served us well. It is also noteworthy that the presidential model has not fared particularly well in Nigeria or Sierra Leone. Thus, one would hope that we are now in a position to learn from the various painful lessons we have been taught by this ‘mongrel’ of a system, as affectionately described by Professor Anyang’ Nyong’o writing in these pages on diverse occasions.
History demonstrates, and we ourselves have first-hand experience of the fact that presidential systems have a tendency towards conflict and marginalisation of smaller minorities. This has been the case in Kenya since Independence. In our diverse, multi-ethnic, yet polarized society, we may be well advised to place our collective energies in a system that embraces and nurtures our diversity. If it is stability and prosperity we seek, we can learn ample lessons on parliamentary democracy from India, New Zealand and indeed, Britain.
While it would be grossly inaccurate to describe either system of government as better than the other, perhaps the most important consideration is the question of context. It is incumbent upon us to consider which system is best suited to our unique situation, as a result of our history, our culture, and circumstances. This is a national discussion we must hold sooner, rather than later.
The writer is a governance expert