GOVERNANCE CRISIS

DP position fails 2010 Constitution test

In spite of the promises of the 2010 Constitution, the presidency remains a sharp sword that needs blunting

In Summary

• The conflict between the President and the Deputy President is beyond the persons of President Uhuru Kenyatta and Deputy President William Ruto.

• The clash is a product of a constitution that needs re-imagination.    

DP position fails 2010 Constitution test
DP position fails 2010 Constitution test
Image: OZONE

The uneasy relationship between the President and the Deputy President exposes a crisis of governance.

The conflict is beyond the persons of President Uhuru Kenyatta and Deputy President William Ruto. The clash is a product of a constitution that needs re-imagination.    

The President and DP were elected in 2013 and 2017 on the Jubilee Party ticket for a definite presidential term. But the President, who wants to focus on his legacy, cannot work with an ambitious deputy— a parallel nexus of power.

Ruto aspires to succeed Uhuru, with a revving pre-term campaign. If the President had his way, he would sack the DP, but the Constitution denies him the leverage. By raising the clout of Interior Cabinet Secretary Fred Matiang'i, the President appointed a 'vice-president' to advance his electoral plunk.     

The conflict between the Judiciary and the Executive further emphasises the governance crisis that the Building Bridges Initiative seeks to address. The conflict goes beyond President Kenyatta, as the head of the Executive, and Chief Justice David Maraga, as the head of the Judiciary. It is a sibling rivalry that a faulty structure imposes on the government.   

As the Head of State, the President appoints the CJ, once Parliament clears the nominee. The President, therefore, cannot be charged in court before the Chief Justice while he is the Head of State. There is conflict of interest.    

'Independent' institutions — the Judiciary, and the Independent Electoral and Boundaries Commission — have had to deal with an incumbent, who is also a party presidential candidate. Former IEBC chairmanIsaac Hassan and incumbent Wafula Chebukati were in a dilemma. The will of the President may have prevailed over public interest.   

Consider a president who is a party leader, a party presidential candidate, a head of state, a head of government, and a commander-in-chief of the Defence Forces. Too much power corrupts.     

During the Supreme Court proceedings following the 2017 bungled presidential election, the Supreme Court bench was dealing with an imperious presidency. The President could not understand the audacity of the Supreme Court that nullified the election of an incumbent.     

The Jubilee regime's promise to 'revisit' the conduct of the Judiciary rode on the sense of slight an imperial presidency feels in a presidential system. Power is envious; it does not tolerate slights and competition.     

The president of the Gambia's electoral commission Alieu Momarr Njai visited incumbent President Yahya Jammeh to deliver bad news to the West African country's presidential mansion. Njai delivered the message because he was president of an 'independent' electoral agency.     

The message was that the incumbent was losing the December 2016 presidential election. But Jammeh, president from 1994, had issues with the notion of an 'independent' electoral agency.  He conceded defeat to Adama Barrow, but later disputed the results. There were domestic and international protests at Jammeh's attempt to subvert democracy. The winning margin dwindled, but the opposition coalition candidate won.    

Such conflicts are likely to occur in any system where the president is the Head of State, head of government, and the head of the Executive. As the head of government — the Executive, the Judiciary, and Parliament — the President, the Chief Justice, and the Speaker are political siblings. But as Head of State, the President is the appointing authority for the Speaker, and the Chief Justice.        

In spite of the promises of the 2010 Constitution, the presidency remains a sharp sword that needs blunting to ease tension in government. The Bomas Draft Constitution of 2015, and the BBI proposals agree that the presidential system needs taming.    

The President can still retain executive power, even with an executive prime minister, without a conflict arising from the two centres of power. The Constitution can define the responsibilities of the two offices to enrich public governance.      

The President can still remain as the Head of State, the symbol of national unity, the custodian of the Constitution, declare state of emergency, and, as may be necessary declare war, assent to legislative Bills, appoint high commissioners and ambassadors, receive foreign diplomats and consular representatives, and exercise power of mercy.     

As the Head of State, the President can chair the National State Council, consisting of the president, the deputy president, the prime minister, the vice president, deputy prime ministers, the chief justice, the speaker, attorney general, and the chief of defence forces.      

The PM, appointed from the Majority party, can be the head of government, chair Cabinet meetings, and co-ordinate the work of ministries.       

Even secondary schools now have more than one deputy principal -  one in charge of administration and the other runs academic affairs.