• The problem is that counties have been denied access to these resources due to the powers wielded by the Executive
• The attraction of the parliamentary system of government is that it will do away with this concentration of executive power
The elephant in the room in Kenyans' debate on constitutional reforms is the presidency, the pinnacle in the Executive wing of the government.
This has been an issue since Independence. In fact, when we abandoned the parliamentary system in favour of the presidential system in 1964, the argument given was that we needed a strong presidency for purposes of national unity. The same argument was given at the advent of the one-party system then. National unity has been elusive. The strong presidency has yielded little developmental dividends compared to our independence age mates in South East Asia.
It did not take long before some of the architects of the strong presidency and the one-party system started to regret. That single-party system and the strong president started to imprison political opponents without trial. Newspapers and books were banned at the whims of a few at the top. Opponents from within and without the single party were occasionally assassinated or disappeared mysteriously. Clinging to dear life some, like myself, voted with their feet into exile.
Kenyans heroically resisted this misrule and political oppression. It was not until 1991 that the one-party system caved in after tremendous internal and external pressure. The advent of multiparty politics was not a gift from Moi: It was a victory by the democratic social forces. But the gains of multiparty politics had one drawback: They were grafted on top of an all-powerful presidency which undermined these gains for yet another ten years!
In 2002, when the National Rainbow Coalition won elections against President Daniel Moi's Kanu and stopped Uhuru Kenyatta from succeeding him, the institution of the all-powerful presidency remained intact as Mwai Kibaki took the reins of power.
Very soon Kenyans realised that the evils of the old system were easily imported into the Narc regime: Corruption (Anglo Leasing); impunity (the Executive easily ignored the Bomas of Kenya resolutions on constitutional reform) and soon the only democratic way to change governments through elections fell victim to the machinations for the survival of the all powerful presidency.
When the opposition challenged this state of affairs by defeating the government at the 2005 constitutional referendum as well as in the 2007 elections, presidential impunity was carried a notch higher by subverting the works of the Electoral Commission of Kenya and causing total confusion in the reporting and counting of the results of the poll. The famous comments by the then ECK chairman Samuel Kivuitu at the KICC tallying centre, dramatically expressed his frustration with the state-induced sabotage when he said: "I don't know what is happening; these results are being cooked somewhere!"
From then on, chaos and violence followed. Hundreds of people were killed and thousands rendered homeless. Kenyans were only saved from civil war by Pan-African and international intervention that called for drastic political, economic, constitutional and legal reforms to lay firm foundations for democratic government and socioeconomic progress that would be inclusive and not vulnerable to the kind of post-election violence of 2007-08. This was the logic behind the 2010 Constitution.
One major achievement of the new Constitution was devolution. Kenyans achieved the following through devolution. One, inclusiveness: All Kenyans now feel they have their own government that they elect and one that serves their local needs. Democracy has been devolved to the grassroots through devolution. Two, the awful distance between the individual and political power has been drastically reduced. It is now easier to hold an MCA and the governor accountable because they are basically with the people. Three, resources which were previously a preserve of the centre are now at the periphery because county governments have constitutional obligation to perform certain functions "down there."
The problem, however, is that counties have been denied access to these resources due to the powers wielded by the Executive. The structure of the Executive is such that it will continue to behave with impunity because it is not really answerable to Parliament. What of a Cabinet that cannot be questioned on the floor of the House and a chief executive who is under no obligation to implement decisions of Parliament, even when they have been passed into law?
What becomes law is entirely dependent on a partisan President?
In the debates on the reforms we need in Kenya, it is very clear that the corruption and impunity that have been on the rise notwithstanding the new Constitution are all due to the enormous presidential powers that are still protected and nurtured by the supreme law.
The attraction of the parliamentary system of government is that it will do away with this concentration of executive power which is detrimental to our democratic and economic development. The power will now be vested in a much more diverse and democratic institution called Parliament. Power gets deconcentrated not by the number of individuals who populate the presidency (first to even third deputy president; first to second prime minister etc) but by how power is shared and institutionalised among three institutions: the presidency, parliament and devolved government (currently called counties).
While putting our hope in Parliament, we must also change the way we elect our MPs. First, the idea of single constituency first past the goal post mode of electing MPs must be dropped. Instead, we will have proportional representation based on the strength of political parties which will be assigned seats on the basis of the proportion of votes each party gets in an election.
Second, the way a Prime Minister is chosen will also be based on who heads the most popular party or coalition of political parties in Parliament. Such a PM will then form a government representative of the nation as a whole the way it is done in Switzerland. In other words, all parties in Parliament are represented in government in proportion to the number of MPs they get. If we do this, we shall have inclusivity as well as a better chance for national cohesion.
We are also much more likely to avoid the terrible phenomenon of the rigging of votes and post-election violence that can easily follow such electoral bad manners.