KANYADUDI: Implement the Nadco report in full to enhance political stability

Most studies conclude that democratic breakdown is more likely in presidential than in parliamentary regimes. One of the most critical choices constitutional drafters face is choosing between presidentialism and parliamentarism.

Research indicates that this choice is an important factor in democratic consolidation.

Presidentialism is said to have the advantages of Executive stability, greater democracy, and more limited government, but the disadvantages of executive-legislative deadlock, temporal rigidity, and less inclusive, ‘winner-take-all’ government.

Parliamentarism, on the other hand, has the opposite consequences. An intermediate type, semipresidentialism, has both a prime minister, dependent on the confidence of the Parliament, and a popularly elected president.

Semipresidentialism retains some of the advantages of presidentialism while showing the potential to diminish some of presidentialism’s defects. However, these basic types are not based on incompatible principles but rather on mixtures of elements, such as separate survival of powers or assembly sovereignty over cabinets, that may be applied in varying degrees to come up with different regime constellations.

The Kenya Kwanza administration got into political headwinds soon after being sworn in. The economic strain caused by the COVID-19 pandemic was weighing down on government development programmes.

The debt burden was spiraling and becoming unbearable as well as untenable. The government turned to local resources to generate the much-needed funds for its ambitious projects.

This inadvertently led to new tax proposals. The Finance Bill 2023 had intended to widen the tax base and seal loopholes for tax evasion. However, its implementation had the counterproductive effect of increasing the burden on citizens and causing much more social pain than the anticipated relief.

In Parliament, the minority leadership lost the argument, and the Bill sailed through. The opposition leaders thereafter responded by rallying the public to civil disobedience.

They mobilised the popular resistance through the clarion call, “sufuria maandamano.". The protests turned violent but became weekly and relentless.

Through the intervention of the diplomatic community and the religious leaders, a truce was arrived at and an uneasy calm returned.

In the intervening period, the opposition leader, Raila Odinga, made several demands aimed at reducing the tax burden. He threatened resumption of protests if these demands were not met. The government, on the other hand stuck to their ground.

President William Ruto insisted that the process of revenue mobilisation is parliamentary and only Parliament had the mandate to settle the dispute. He advised that the two Houses of Parliament had capable leadership to resolve the impasse.

He therefore proposed a bipartisan approach to find a solution. The opposition acceded to the proposal, and a committee was established comprising MPs and select representatives of the main political coalitions.

The National Dialogue Committee (Nadco) was established via Parliament and the membership gazetted as required by law. The committee was given mandate beyond the tax crisis to include issues of governance.

It took the structure and strategy of the defunct Building Bridges Initiative (BBI). It turned out that the governance agenda became the main plank of the mandate of the committee.

The tax and economic burden were identified as ancillary to the governance structure system. It is instructive to note that ever since Kenya embraced the presidential system in 1964, the governance structure has been somewhat unstable. On more than one occasion, the country has tottered on the brink of civil war.

The worst was in 2007, when the postelection violence led to more than 1,000 deaths, as well as destruction of property. Many more thousands of citizens were displaced from their homes and places of work on account of ethnic profiling.

The international mediation, led by Kofi Annan, led to the establishment of the Grand Coalition government of President Mwai Kibaki and Prime Minister Raila. However, it also brought into force a new constitution in 2010 and a host of new governance and oversight institutions.

The new constitution refined and entrenched the presidential system modeled on the US structure. It removed the constitutional provisions in the old laws that made room for parliamentary practice.

Instead of the opposition, it now had the minority and majority instead of the government side. In reality, the constitutional provisions were not consistent with the national political psyche. The legislators continued to conduct themselves as in the Westminster parliamentary system.

The linear presidential system was not responsive to the collegiality of ethnic political coalitions. It promoted exclusion more than inclusivity.

The schism has been palpable and a constant threat to national stability. The system is vertical and hierarchical. It does not disperse power but concentrates political authority in the presidency instead.

It demands loyalty without appreciating the tribal conclaves that exist and commands absolute obedience from their respective kingpins.

Since the reintroduction of multiparty democracy in 1991, leading political figures have mobilised voters and supporters along ethnic lines.

Kenyan communities feel recognised and included if a member of their ethnic group is strategically placed in the leadership of a government agency or political formation.

It is for this reason that serious presidential candidates seek to include in the ranks of their respective political parties, key tribal operatives. Every election since 2002 has been contested on the basis of tribal alliances.

The main contenders would woo and entice the leaders of the second-tier tribes to their camps with promises of strategic positions and key development projects. The resultant government is a de facto coalition yet de jure unitary presidential.

The internal contradiction leads to tensions and instability in government. The BBI and Nadco processes correctly identified this internal contradiction and inconsistency with the national political heritage in their respective reports.

While the majority of the committee of experts, led by senior counsel Nzamba Kitonga, leaned towards the US model of pure presidential system, the ground sounded different.

Many ordinary Kenyans desire a dispersed power arrangement where key political players and every community feel accommodated.

The historical experience with the Westminster parliamentary system is so engrained in the political genetics of the people of Kenya. Yet because they cannot unitarily establish a monarchy for statehood, the presidency is their guarantor of statecraft.

The desire is to create a blend of a presidential and parliamentary system. However, designing that system has proved a hard nut to crack for both the political scientists and political leaders as well as legal practitioners.

If the three key players in the political field of the country’s leadership spectrum could solve this jigsaw puzzle, then the country would find its stable footing. It may be interesting to find out that it would work well if power at each level of governance is distributed to separate offices for accountability and oversight.

At the state level, the presidency would be three-tiered, with the president having a deputy and a vice. The deputy would be the person to stand in for the president and perform the functions of the office in case of incapacity or vacancy.

The deputy would therefore be nominated by the presidential candidate before the election and endorsed at the ballot by the voters.

On the other hand, the vice shall be the principal assistant to the president and act on his behalf regarding the mission of the office holder.

However, the hybrid systems of France and Russia offer useful lessons to pick from. France has a semi-presidential system of government, offering almost a balanced power sharing between the president and the prime minister.

The prime minister is the holder of the second-highest office in France, after the president of France. The president, who appoints but cannot dismiss the prime minister, can request resignation.

The Executive consists of the prime minister and ministers. The prime minister is responsible to Parliament.

The National Assembly, which is the lower House of Parliament, through a motion of no confidence, can dissolve the government, including the prime minister. This ensures that a majority in the lower House practically always supports the prime minister.