STRUGGLE OF CONSTITUTION-MAKING

Kenyans don't want to elect President but democracy, peace, national unity, development

In 2002, Kenyans voted more for Narc as a party of change and national unity than for Mwai Kibaki as a President on his own

In Summary

• There is a rather strange dogma that Kenyans want to vote for their President: This is what they are used to. False.

• In 1963 at independence, Kenyans voted on party lines. Kanu won the elections and Jomo Kenyatta was the first Prime Minister. The idea of a President was introduced in December 1964 and nobody voted for it.

ODM leader Raila Odinga and Kisumu Governor Anyang' Nyong'o during teh launch of his book at UoN on Tuesday, September 23
ODM leader Raila Odinga and Kisumu Governor Anyang' Nyong'o during teh launch of his book at UoN on Tuesday, September 23
Image: DOUGLAS OKIDDY

Siaya Senator James Orengo speaking in a panel at the launch of my book, Presidential or Parliamentary Democracy: Choices to be Made, at the University of Nairobi on Tuesday said something important worth revisiting.

Asked by Professor Michael Chege, the chairman of the panel, why the discussions in Naivasha in 2010 en route to the promulgation of the constitution chose to ditch the parliamentary system in favour of the presidential system, Senator Orengo said, "The Naivasha draft constitution was a ceasefire document."

Many Kenyans of progressive persuasion have usually heaped blames on reformers such as Orengo for having compromised rather too easily in sacrificing the Bomas Draft constitution, which upheld parliamentary democracy, for what is essentially been viewed as a "mongrel" that sought to strengthen Parliament while preserving essentially a presidential system with all the powers to meddle with the legislature

 
 

But one needs to look back at that moment in time and reconstruct why the compromise happened.

First, the timeline for concluding discussions at Naivasha was very tight. A report had to reach Parliament by a certain date to allow it to discuss the Naivasha proposals and vote on the new draft constitution in an equally tight schedule. In the end Parliament itself had to drop all the 49 amendments and stick with the Naivasha draft to meet tight deadlines. This was yet the second step in coming up with a ceasefire document.

Second, the question worth asking is, Why the ceasefire?

Kenyans will remember that in December 2007 the presidential election results were hotly contested between the ruling party, PNU and ODM. The violence, loss of life and property and displacement of people (IDPs) was unprecedented in our history. The impasse between PNU and ODM threatened to tear the nation apart. Had it not been for the intervention of the international community led by the late Kofi Annan our history would have been very different. Annan and his team, after extensive and protracted negotiations between the two antagonistic political parties, arrived at a "ceasefire" that, among other things, proposed a coalition government and a raft of reforms that included the need for a new constitution before any other election was held in Kenya.

Third, the ceasefire at Naivasha was necessary not only to meet the tight deadlines for passing the new constitution but also to avoid any other possibility of going to an election without the safeguards of this constitution.

Fourth, notwithstanding this sense of urgency, one could not ignore the contradictory interests that were represented in Naivasha. There were still those who believed that the presidential system was the best thing for Kenya, and they had the right to converse for this point of view. There were those who believed that the parliamentary system was the best. The former largely represented PNU interests, while the latter were essentially ODM in political inclination. There were also gray areas between the two with individuals oscillating in their points of view as a result of the circumstances in which they found themselves.

As the clock ticked on, it became clear to the conferees that coming out of Naivasha with no compromise document was not an option. This would not only negate the political and reform agenda set out by Annan and his team but would also run the risk of taking Kenya to an election under a constitution incapable of guaranteeing a peaceful election.

 
 
 

There was a strong feeling that Kenya could not stand yet another controversial election based on constitutional provisions that were, by themselves, controversial. Hence the ceasefire compromise document acceptable to both sides of the political divide.

But the making of history is not always that neat in explanation. Many things could have happened in Naivasha to sway some minds away from the Bomas parliamentary model. We can only guess what these things were and how they could have determined the outcome of the discussions.

Though it is almost impossible to establish empirical evidence by those of us who were not at Naivasha, it is quite possible that substantial arm twisting, political promissory notes and even bribery could have been used by the state to influence favourable positions towards the presidential system. We will never be able to have ocular proofs on this.

Be that as it may. We are now in 2019. Back to where we were then. Debating on the merits and demerits of the two systems in advancing democracy, national unity and development. There is plenty of empirical evidence that the presidential system scores rather poorly on the three criteria. 

PARLIAMENTARY SYSTEM IN OTHER JURISDICTIONS

Parliamentary system has performed much better in jurisdictions that compare favourably with our own situation. This time we have time and space to reason together more productively in the choices we have to make. What, then, stops us from doing so?

There is a rather strange dogma that Kenyans want to vote for their President: This is what they are used to. False. In 1963 at independence, Kenyans voted on party lines. Kanu won the elections and Jomo Kenyatta was the first Prime Minister. The idea of a President was introduced in December 1964 and nobody voted for it. The ruling party, Kanu, chose the system in Parliament without popular approval.

In 1969, 1974, 1979, 1983 and 1988, the incumbent President assumed office unopposed. In 1992 and 1997, the incumbent continued to rule through essentially semi-competitive elections, where the opposition won the majority of the votes while the incumbent continued in office with minority support.

It was only in 2002, with Uhuru Kenyatta not enjoying the luxury of incumbency, that a united opposition overwhelmingly won the majority of the votes in an election reminiscent of 1963.

Kenyans voted more for Narc as a party of change and national unity than for Kibaki as a President on his own. Why, then, must we insist that Kenyans want to vote for their President? Kenyans want to vote for democracy, peace, national unity and development. When there are no clear options for these in an election, they then seek the solace of tribe in a presidential candidate.