For starters, the fusion of the functions of the state and those of the government is a constitutional conundrum that will continue to occasionally plunge the country into political crises for a long time to come.
This was a relic of the US Constitution that Kenyans borrowed in 2010 without considering our political history. The drafters of the Constitution also totally ignored the prevailing political culture. It is the political history and culture that define the governance structure and traditions of a nation.
The presidential system of governance as initially borrowed from the US in 1964 and entrenched in the 2010 Constitution is inconsistent with Kenya’s political history and cultural heritage. The cultural heritage comprises independent ethnic communities governed largely by a committee system of clan elders. Decisions were made more by consensus rather than majoritarian vote.
The national modern political history has been influenced more by the Westminster parliamentary democracy, which is driven by political parties. This is on account of decades of colonial relationship with the Great Britain. Under the British rule, the Monarch in London was the head of state but was so remote to the subjects that Kenyans hardly had connection with Buckingham Palace.
At independence, Jomo Kenyatta became the Prime Minister as the leader of the majority party in Parliament, Kanu. As prime minister, he was head of the Executive arm of the government. The judiciary and legislature had their respective heads in Sir John Ainley and Sir Humphrey Slade. State functions remained under the monarch as represented by the Governor General on behalf of Her Majesty Queen Elizabeth II.
The state in a liberal democracy is therefore understood to consist of the three arms of government together with the defence forces and the territorial jurisdiction. These are the elements that define the sovereignty of the state and are as vested in the citizenry. It is this sovereign power that citizens choose to exercise through delegation to elected and appointed officials or directly.
Good corporate governance practice recommends that supervisory responsibilities be separated from operational roles. It is further advised that such roles be clearly delineated and reporting lines separated for avoidance of duplication in communication and accountability. Therefore, it has been argued, and rightly so, that the functions of the state should be separated from those of the Executive arm of the government. In perspective, when President William Ruto sponsored the Finance Bill 2024 in Parliament, he did so as the head of the Executive arm of the government.
When he later rejected the same bill after passage by Parliament, he did so as head of state. And therein lies the danger. Since it is the same person acting in the two roles, it becomes difficult to trust his actions when they contradict each other. It would be easy to understand the rejection of the Bill by the head of state if the actor was a different person from the head of the Executive arm of government.
President Ruto thus finds himself in a dilemma whereby the Constitution gives him powers as head of Executive arm of government on one hand and on the other hand vests in him the powers of the State as well. Citizens get genuinely confused and do not know when the president is acting as head of the Executive or as head of state.
The last two weeks have brought unprecedented tension occasioned by demonstrations by citizens from almost all the counties. The protests were initially youth-led and ostensibly led by the Gen Z. However, it later attracted the involvement of more senior citizens and those considered veterans of street protests in Kenya’s political history. The Gen Zs were unique in their protests as they were largely peaceful and well organised and relied more on smart technology. They also avoided any association with established political formations and had no public faces in their leadership ranks.
They were sophisticated and exhibited high levels of civic consciousness and maturity. They were primarily focused on their agenda and avoided unnecessary sideshows. Thus, they quickly achieved unexpected results by forcing the President to concede and refuse to assent to the Bill. At the press briefing, the President announced that he would proceed to engage the youth in a structured dialogue to address the demonstrators’ concerns. These twin decisions by the head of state were expected to calm the nation and return it to normalcy.
Unfortunately, this was never to be as fresh rounds of protests resumed the week after. The President made new demands after the rejection of the Bill. The expanded included the resignation of President Ruto. The government found is itself divided almost in the middle after Deputy President Rigathi Gachagua sensationally claimed the NIS concocted a security report to implicate him in the skirmishes.
Parliament went on recess at a time of grave national crisis soon after they approved the deployment of the defence forces to support police work. The confusion in government operations continued as the plotters dug in and demonstrations turned violent. Destruction of property and vandalism of businesses ensued and became the order of the day. The Gen Z publicly claimed that forces with ulterior motives had hijacked the demonstrations. The leadership of Kenya Human Rights Commission backed the claim.
The fluidity in the Gen Z protests compounded by the lack of clear and manifested leadership has therefore become a threat to national stability. This is further complicated by the aforesaid seamlessness in the leadership of government and state functions. The demands for President Ruto’s resignation are premised on his role as head of the Executive arm of government. Yet as head of state he is mandated to receive petitions from citizens against any of the arms of government.
The lack of public leadership of the revolt movement makes it difficult for the government to engage. The people invited to deliberate on the possible solutions to the impasse need to be legitimate leaders of the movement. Without such legitimacy, those participating in such consultative processes do not bear the authority of the Gen Z protesters. The protesters in their social media platforms have as much declared that they have no leadership and demanded the government just act on their memorandum.
Such an open-ended approach to serious national challenges is imbued with lethal contradictions that make engagement an exercise in futility. The strategies and actions will not be smart and the results, therefore, cannot be measured. It would be extremely difficult to determine whether progress has been made in addressing the concerns. Further it would be impossible to forestall any new demands from the agitators. The circumstances are thus a threat to national security and susceptible to infiltration by enemies of the state, both internal and external.
It is therefore imperative that the original planners of the contestation to the Finance Bill bring out their leaders for engagement with the government. This will facilitate organised dialogue with smart objectives and measurable outcomes. President Ruto must also demonstrate the statesmanship of his high office as head of state. He should avoid brinkmanship and partisan politics at this time of national crisis. Otherwise Kenya as a state finds itself at the precipice of ruin and eventual collapse.
Political and public policy analyst