MUTUNGA: Sharing of political power: Is winner takes all, Constitutional?

Indeed, the 2010 Constitution has that vision and decrees it.

In Summary
  • It is clear to me that the winner takes all value or principle is not one of our national values and principles.
  • Indeed, the selected articles reproduced here negate it.
Former Chief Justice Willy Mutunga
Former Chief Justice Willy Mutunga
Image: FILE

It is my view that Kenya does not need either a political party, a political coalition, the opposition (if it exists) or our government itself, to give us a coalition government.

Indeed, the 2010 Constitution has that vision and decrees it.

Let us sample some of the crucial articles in our 2010 Constitution:

Preamble: Proud of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation:

Article 1 (2): The people may exercise their sovereign power either directly or through their democratically elected representatives.

Article 10 (1): The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons wherever any of them-

  • applies or interprets this Constitution;

 (c) makes or implements public policy decisions

 (2) The national values and principles of governance include-

 (a)…national unity, sharing and devolution of power,…

(b)…equity,…inclusiveness,…equality,..non-discrimination and protection of the marginalised;

(d) good governance…

 Article 259 (1) This Constitution shall be interpreted in a manner that-

  • promotes its purposes, values and principles;

 (d) contributes to good governance.

Indeed, there are other relevant articles in our Constitution but these provisions illuminate the points I want to make.

It is clear to me that the winner takes all value or principle is not one of our national values and principles. Indeed, the selected articles reproduced here negate it.

It is a value and principle that the history of our Constitution negates.

The values of equity, inclusiveness, equality, non-discrimination and protection of the marginalized are there to put an end to the politics of ethnicity which since independence have allowed the five big communities to engage in coalitions that marginalize the rest of the communities in this country.

Indeed, the face of Kenya as a value in the appointments that governments make after they come to power is ignored and flouted.

The post-colonial government dealt with the issue when KANU merged with KADU although it did not stop the President, Mzee Jomo Kenyatta, from giving the five powerful ministries to the people of Kiambu.

The Attorney-General, the Minister of State, the Minister of Foreign Affairs, and the Minister of Finance joined the President in what came to be popularly known as the Kiambu Mafia.

The Moi government inherited a de facto one-party dictatorship and it struggled with appointing a government that reflected the face of Kenya. Indeed, true to its name, Nyayo (footsteps), it took the political cue on appointments from the previous government.

Ethnicity played a key role in the appointment of ministers and civil servants. Appointments from other communities were given to those who followed President Moi’s footsteps (fuata nyayo).

Surely, this is the unpatriotic, discriminatory history the 2010 Constitution departed from in word and spirit to reflect the values decreed in its Preamble and the selected articles quoted herein.

I believe neither Azimio nor Kenya Kwanza finds this history objectionable. I believe what Kenya Kwanza has done in its appointments would have been replicated had Azimio come to power.

The Matter of a Coalition

 We the people of Kenya can directly exercise our sovereign power in the appointment of Cabinet Secretaries and Permanent Secretaries to give national unity, equity, equality, inclusiveness, non-discrimination, and de-marginalization of other communities, a government and civil service that reflects the face of Kenya.

We could also give unto ourselves a government and a civil service that merits those appointments rather than the ones the factions can give us.

We the people can decree a coalition government of the parties that participated in the elections while bearing in mind the value and principle of inclusiveness among the others.

I am sure Kenyans would have considered Counsel Wanjakoya for the Cabinet Secretary for Health. Seriously, because he had persuasive ideas about the use of weed and marijuana for medicinal purposes.

We the people could have given this country a 50/50 per cent gender parity that the Kenya Kwanza government reneged on.

We the people have so much power given to us by the Constitution but we will never use it if we daily pray to the gods of ethnicity and monetization of our politics.

The Matter of the Opening of the Servers

The request by Azimio is anchored in the Constitution. Article 35 decrees the right to access information held by the state and held by another person (read by the Chair of IEBC or anyone else responsible) and is required for the exercise or protection of any right or fundamental freedom (read by Azimio).

If both Azimio and Kenya Kwanza did not seek to enslave the commissioners of the IEBC and guaranteed their independence and integrity, and that of the institution, IEBC would not second guess any powers that may be in acceding to a request to open servers, wherever they be.

As the wisdom of the Kiswahili goes mwiiba wa kujichoma hauna pole (nobody would sympathize with you if you used a thorn to puncture part of your body.)

National institutions must be independent of economic, ethnic, monetary, social, and political forces if we are serious about free and fair elections.

In any event, when a Presidential election is won by such a narrow margin does it take rocket science to know that the country will be unstable when the election was fought on ethnicity and monetization?

Why would our elite not even embrace the politics of multi-party dictatorship and share the spoils? Since that is a rational suggestion given to a politically irrational elite, I politely withdraw it in shame for even suggesting it! This is where we the people of Kenya must come in and exercise our sovereign power directly.

Let me end by repeating my consistent and continuous prayer: Our crisis is fundamentally a crisis of our elite political leadership that subverts our Constitution and delights in politics of division and the unconstitutional value and principle of winner takes all.

As my teacher, Walter Rodney, wrote, “…the moment that power is equitably distributed among several ethnic groups, the very relevance of making the distinction between groups will be lost.” Does our political elite think the value and principle of “sharing and devolution of power” is in our Constitution without a reason?

Willy Mutunga is the former Chief Justice and President of the Supreme Court from 2011-2016

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