• The greatest challenge that Kenyans expected the BBI to fix was the politics that determine the position and exercise of executive authority.
• The BBI committee has, however, recommended the creation of a prime minister position that will be part of the presidency.
Image: COURTESY
On November 27, President Uhuru Kenyatta and Raila Odinga lived up to their promise to deliver to Kenyans the Building Bridges Initiative report, which is aimed at healing the nation from perennial electoral and social injustices.
Prior to the launch, the report had raised a lot of heat and helped fuel the political fissures in both ruling Jubilee and national political fabric in almost equal measure. BBI found itself a reluctant participant in the ensuing feud between Kieleweke, which is pro-Uhuru and Tangatanga, pro-DP William Ruto, both factions within the ruling party Jubilee.
While Ruto is on an all-out war to succeed his erstwhile bosom buddy, Uhuru is determined to avoid toxic politics in a bid to bequeath a positive and lasting legacy to Kenyans. The short-term pursuit of parochial interests and dichotomy of policy outlook has brought to fore the duopoly that has been the UhuRuto presidency.
The two factions had made the BBI their choice tool for brickbat politics. They must have been disappointed that the Senator Yusuf Haji-led task force delivered on time and the report received relative acceptance across the country. Save for a few missing recommendations, the report captured the mood of the nation.
Yet, it is in the missing recommendations that the report has its weakest link. It is on the missed mark that the BBI team missed the most important target. If these are not addressed in good time before the report is taken for approval, then all the other robust recommendations risk being unimplementable.
The greatest challenge that Kenyans expected the BBI to fix was the politics that determine the position and exercise of executive authority. The government theoretically has three branches — the Executive, Parliament and the Judiciary
Parliament has the National Assembly and the Senate, while the Judiciary has the Supreme Court, the Court of Appeal, the High Court and the subordinate courts.
The Executive, on the other hand, has continued to be a behemoth enjoying the powers and responsibilities of both state and government fused together. This challenge seems not to have been adequately addressed by the BBI report. Yet it is considered so cardinal to Kenya’s stability that it cannot be scratched at the surface for the umpteenth time.
PRESIDENTIAL SYSTEM DEMONS
Ever since Kenya adopted the presidential system in 1964, things political have not been the same and have gone worse. Every attempt to review this imperial imposition on our fragile political fabric has always ended up not addressing the malady surgically. Instead, while those tasked with the responsibility of reorganising the Executive seem to know and agree on what should be done, they repeatedly fall prey to shenanigans. It is against this background that there were high expectations on the BBI team to be brave enough to confront this ghost and exorcise it for the good of the nation.
The public expected the team to recommend the establishment of a robust and responsive Executive. The BBI team should have been bold enough to recommend radical changes to the winner-take-it-all electoral process that has been the bane of our ethnic-laden political competition.
However, it is felt that the recommendations made in this front are insufficient to address the malaise of tribal balkanisation and executive impunity. The recommendations are modest at best and regime apologist in its true colours. In terms of political analysis, the recommendations are revisionist and incrementalist instead of revolutionist and pragmatic.
The BBI committee has recommended the creation of a prime minister position that will be part of the presidency. The PM will be an appointee of the president among the MPs of the majority party. This gives the head of state, in our case the president, the leeway to appoint any MP so long as the appointee is from the majority party. This is the case in Tanzania, Uganda and Rwanda.
In these countries, the premier is a nominal super minister acting as the prefect of the Cabinet on behalf of the president. The president always fires them at will and there is no consultation between the premier and the president. Their relationship is at best bearer of presidential message to Parliament but usually a subordinate just below the vice president. It is more of a favour to the MP appointed than a matter of formality to the winning party.
The premier in this arrangement serves at the pleasure of the president, not on behalf of the people who elected the winning party. Ordinarily, in a parliamentary democracy, the party with the majority MPs recommend to the head of State their preferred candidate for appointment as premier. And in most, if not all circumstances, the recommended MP would be the leader of the party in Parliament. The leader of the majority party so appointed thereafter nominates his preferred candidates for appointment as ministers. Since they are MPs anyway, they do not have to go through parliamentary vetting. The president offers the appointment as head of State but not the Executive.
It is the current fusion of the functions of state and the Executive that has brought untold suffering to Kenyans time and again. It is also the key igniter of tribal animosity among citizens and prime promoter of impunity.
As Kenyans consider the route to implement the BBI report, whether parliamentary, referendum or both, the question of executive authority should addressed. If the system is to work well, then we should take this grand opportunity to separate the functions of the State from those of the Executive.
The president should not be the head of State and preside over the State comprising the Legislature, the Executive, the Judiciary and the defense forces. The office will continue being the superintendent of partisan interests of politicians and be able to tamper justice with mercy in case of judicial obfuscation.
The head of the Executive, as the Chief of Defence Forces and the Chief Justice, would receive their appointments from the head of State. In this respect, they will be accountable to the citizens through him or her.
The head of State will have independent constitutional commissions and offices to assist in monitoring the performance of the three arms of government and the defense forces.
Within this framework, how can the head of State still be considered ceremonial and lacking in executive fiat?
The PM and the head of state will and should exercise executive authority on behalf of citizens but offer checks and balances for each other.
The President may belong to a party but should be barred from promoting a partisan agenda.
This may be the cure to the fear of tribal domination and discrimination in national politics.