How the BBI Proposals differ from Bomas Draft

We do not know what the final BBI proposals will be, but the Sunday Nation told us that “if adopted, [the BBI proposals] would be a major reversal back to the hybrid system that both the 2005 Bomas Draft and the Harmonised Draft Constitution by the Committee of Experts had proposed”.

It is not the labels (“hybrid”, “parliamentary”, “presidential”, or “semi-presidential”) that we focus on. The issue is: assuming that you have both a President and a Prime Minister, who has what power?

Why does this matter to Kenya?

From 1963 to the end of the 1980s Kenya experienced an increasing level of presidential authoritarianism. The one-party state formally ended in 1991with removal of the requirement that every candidate for election must belong to Kanu. But the sense that power was heavily centralised in the hands of the “Imperial President” remained, and Kenyans told the Constitution of Kenya Review Commission that they wanted this ended. The Bomas draft responded to this desire.

In 2008, after the post-election violence, the view was strongly expressed that if we had had a different system of government those dreadful events would, or might, not have occurred. 

The Committee of Experts, working on the final constitution, did pick up the Bomas proposals. But the Parliamentary Select Committee (with the support of Uhuru and Raila) shifted back to a system in which much power (even if less than under the old Constitution) rested in the hands of the President.

Raila, post-handshake, has been telling us that our system now is too exclusive (it prevents people like Raila and leaders of other major groups getting a place in government). And Justice Johann Kriegler — who chaired the 2008 Independent Review Committee on the 2007 elections — told a recent University of Nairobi online “Fireside Chat” that the “Imperial Presidency” had continued.

The heart of the matter, these various critiques have assumed, is that the single position of President was so powerful, so desirable, that people would do anything to keep it, or get it. And this has been the main cause of our inability to hold elections that are fair and convincing.

Both Bomas and BBI proposals are for a system with a President and Deputy, and a Prime Minister (and two deputies).

Who would choose, dismiss and control whom?

In the Bomas draft, the Prime Minister (PM) would choose the Ministers, who would, purely formally, be appointed by the President. Under BBI, the President would choose the Ministers, “after consulting” the PM; this means he/she does not have to follow the advice, but must take it seriously. Under Bomas, the PM could dismiss Ministers. That is not discussed by the BBI, but we can assume they intended the President to be able to dismiss.

Under Bomas the PM would chair the Cabinet; under the BBI the President would do so, but might ask the PM to chair cabinet committees.

Under both proposals, the PM must be the person heading the largest group in the National Assembly. There must be a vote of the National Assembly, and a majority of all MPs required for the PM to be appointed. The BBI even hinted that a higher percentage might be required. Under Bomas, if it proved impossible for MPs to agree on someone, eventually there would be another general election. BBI mentions no such deadlock-breaking mechanism.

Under Bomas, the PM could be removed by a vote of the National Assembly (a “vote of no confidence”). The President could propose this — but the same vote of no confidence would be needed to remove the PM. Under BBI, the President is said to be able to dismiss the PM — though how this would work, since he could only appoint someone who got the support of the MPs, is not clear. There is no mention of the vote of no confidence.

Under Bomas, the PM would nominate Permanent Secretaries (now called Principal Secretaries) “in consultation with” the Public Service Commission. This means the PM and PSC must agree. Under BBI, PSs would no longer need parliamentary approval (but would, presumably, still be appointed by the President?).

Under BBI, the President would presumably continue to appoint — and choose — the AG. Under Bomas, that would have been a technical position appointed on the recommendation of the PSC. The DPP would have been appointed in the same way as the AG. Presumably under BBI, the DPP would be appointed as now: chosen by the President but must be approved by the NA, who should be supporters of the PM. 

Popular election of the PM and the President

On the face of it, the two systems are similar. In each, the President would be elected as now: directly by the people.  The PM would emerge from the way the people elect their MPs, because the MPs must vote for the PM.  

When it comes to the crunch

The BBI describes the PM as the leader of government business in the National Assembly (the position now held by Amos Kimunya). This clearly shows that the focus of government is somewhere else (namely, in the President)  and that the PM serves that. Under Bomas, the PM headed the policy making body. Under the BBI, the President would occupy that position and the PM would be merely coordinating the carrying out of that policy.

The BBI would have the PM paid only their regular salary as MP, while the President’s salary would still be fixed, presumably, by the SRC. This would certainly brand the PM as inferior to the President in status and role. The President now has a salary about twice that of an MP.

The Bomas draft was designed to give the President certain significant, but clearly defined, powers that would enable the government of the day to be held to account. They involved certain appointments as we have seen, and certain roles of reporting on the activities of government, or liaising with government. Arguably, it gave too much say to the President in regard to the police and security issues. But in the final analysis, it was clear that the PM was head of government not the President, who was head of state. That draft said so in so many words. BBI would have the President remain head of government as well as head of state. And BBI seems to have proposed no reduction in the President’s real powers.

Practical issues might arise with the BBI, depending on the outcome of the parliamentary elections. Suppose, for example, that the President’s party could not put together a broad coalition that appealed to the people (a sort of one-party state model)?

So Party A won presidential elections, and the President was from the X community. They had anticipated that the PM would be from the B Party and the Y community. But actually the C party wins most parliamentary seats. And the leader of that party is from the X community , just like the President. Or the C Party’s leader is from the Z community, and the Ys are left out in the cold. Are we back where we are now, with the Ys feeling cheated and not accepting the result of the elections?

And if the President comes from a party that does not, and its allies do not, win the National Assembly elections, there is the risk of deadlock. The President is saddled with a PM he or she cannot work with.

Under Bomas, in that situation there might have been tensions but it was quite clear who was head of government.

Kenyan must not accept an idea because it is branded as something that they have an affection for (perhaps like “Bomas”). And of course, they must not accept an idea just because “their” leader likes it and tells them to support it. The reality is that they are cannon fodder for those leaders, whose real interests lie somewhere other than in the nation’s best interests. They must understand what is on offer for themselves.