KATIBA CORNER

Waiting for BBI: A new system with or without a referendum?

One media rumour has it that the BBI plans to make changes but without a referendum.

In Summary

• Public debate, however, has largely focused on just one issue: Whether leaders of the five big tribes could be given high jobs in government or parliament: President, Deputy (or Vice) President, Prime Minister, and one of two Deputy Prime Ministers.

• Changing the democratic system and how the head of government is elected “relates to” democracy — a national value. A change “related to” a national value needs a referendum.

Busia Senator Amos Wako speaks at State House, Nairobi when President Uhuru Kenyatta and ODM Raila Odinga met the Building Bridges team on September 21, 2018.
Busia Senator Amos Wako speaks at State House, Nairobi when President Uhuru Kenyatta and ODM Raila Odinga met the Building Bridges team on September 21, 2018.
Image: PSCU

Strictly speaking, the mission of the Building Bridges Initiative committee — appointed by President Uhuru Kenyatta and ODM leader Raila Odinga as part of the handshake process —was not to change the Constitution, but to make it more effective on a large number of issues, identified jointly by the two.

But certainly, Raila talked from early on about changing the Constitution – often talking about “referendum” as though these are the same thing. He often talked of adopting the “Bomas” system of government (the draft adopted at the National Constitutional Conference in 2004). Commentators suggest that a prime ministerial system is better than we have now, because it makes the Executive more accountable to Parliament (the people’s representatives), because the head of government emerges from Parliament, being the person with the greatest support among MPs, but not necessarily from the biggest tribe, and can lose that support and that office.

Public debate, however, has largely focused on just one issue: Whether leaders of the five big tribes could be given high jobs in government or parliament: President, Deputy (or Vice) President, Prime Minister, and one of two Deputy Prime Ministers.

 

THE BOMAS SYSTEM

Many people are confused about what Bomas proposed — some say a mixed system (a bit like the French) in which a President and Prime Minister share the powers of government. In reality, it was a clearly parliamentary system, but with a very few unusual features.

In the usual parliamentary way, after an election, the President would have appointed the leader of the largest party (or coalition of parties) in the National Assembly as PM. If she (why not she?) was not acceptable by the Assembly, alternative methods of choosing the PM were possible, but the question was who would have the most support in the National Assembly. If the Assembly could not agree on any candidate, there would have been a fresh general election.

The PM, as head of government, could not be dismissed by the President. But the President, or any MP with the support of one-third of the members, could propose the removal of the PM. The actual removal of the PM required 50 per cent of the votes in support.

The PM would preside over the Cabinet (chosen by the PM from among parliamentarians but formally appointed by the President). Ministers were in charge of their ministries and could be removed by a vote of no confidence by the Assembly or by the PM – not by the President. They would have been subject to parliamentary questions in the usual way.

Unusual features included that the President was to be elected directly by the people. The President was to be a symbol of national unity (without affinity with any political party), with the responsibility to safeguard the sovereignty of the country, promote and respect the diversity of the people and communities, protect human rights and safeguard the Constitution. She had no role in policy or day-to-day government.

The President was to address the opening of each newly elected Parliament and report annually to the House (thus to the people), on all the measures taken to achieve the realisation of national values and goals. The president could appoint a commission of enquiry (with parliamentary approval), and could propose (no more) a law for Parliament’s consideration.

Some other functions required joint action with the PM (for example international relations, and securing for courts and other independent bodies “their independence, impartiality, dignity, accessibility and effectiveness”). The president was to ensure that public participation requirements concerning the enactment of legislation had been observed by parliament – presumably by refusing to sign a law that had not had adequate participation. The president could refuse to sign any law passed by parliament but could be overridden by parliament.

So the President — elected by the people, remember —was to act as a bit of a restraint on government action. But she could not make any policy decision, carry out government policy, or make law.

COMPARING WITH PRESENT CONSTITUTION

In the hurried shift from parliamentary to the presidential system as MPs overrode the will of the people at Naivasha in early 2010, some powers suitable for a largely formal President, a symbol of unity, promoter of unity and of respect for the diversity of the people and communities of Kenya, were retained.

These roles would be easier for a non-political president, especially in a country where there is such massive reliance on ethnicity. In several respects, the current elected, party politician president is not suited for these supposedly unifying functions.

In the Bomas system, there would have been constant accountability of the PM and colleagues to the legislature. The current Constitution is somewhat better than some presidential systems; it is essentially the American system. The president can appoint ministers (”Cabinet secretaries”) only with the approval of the National Assembly.

In the US, the approval is that of the Senate: Supposedly older and wiser than the other House. Our National Assembly (unlike the US Congress) can secure the removal of a Cabinet Secretary, but only for violation of the Constitution or other “gross” misconduct rather than fundamental differences of policy. CSs are required to provide parliament with “full and regular reports concerning matters under their control” and to answer questions at the request of the relevant committee—rather than the full house. Their real accountability is to the president.

In all these processes, the accountability of the President to the legislature is rather limited—a weakness aggravated due to the awe with which Kenyans tend to regard the holder of the presidency. Removal of the President by Parliament (impeachment) is most unlikely, because it requires two-thirds of the National Assembly and the Senate.

CAN WE HAVE A PM WITHOUT CHANGING THE CONSTITUTION?

One media rumour has it that the BBI plans to make changes but without a referendum.

Maybe it would be possible for the President to appoint someone called “Prime Minister” without changing the Constitution, or even law. But that person could not be drawn from Parliament: The Constitution says ministers (now called Cabinet secretaries) must not be MPs. So it would not be a parliamentary system. It would be like Uhuru’s appointment of CS Fred Matiang’i as a sort of super-CS (some have described this as PM – which it is really not).

The Constitution allows the President to sack CSs at any time. This could not be prevented by an ordinary law.

The Constitution says any CS must not hold office in a political party – which might rather make nonsense of any idea of appointing party leaders from different communities for “inclusion” reasons.

Without changing the Constitution, any agreement on these matters would probably be little more effective than the Kibaki/Raila 2003 MoU.

We have pointed out before that a referendum may take place in two situations. One is what Ekuru Aukot hoped for Punguza Mizigo: A proposal presented to counties, passed by at least half, rejected by Parliament, sent to the people.

The other is an ordinary type of constitutional amendment: Passed by two-thirds of each house of Parliament. This would require a referendum if it “relates to” certain aspects of the Constitution. Some of these are irrelevant here (like the territory of Kenya and independence of the judiciary).

But maybe one can argue that changing the democratic system and how the head of government is elected “relates to” democracy — a national value. A change “related to” a national value needs a referendum.

Giving Parliament the choice of head of government surely “relates to” “the functions of Parliament”.

If a change goes further and requires that various offices to be occupied by people from major tribes, many people would say this undermines good governance – another national value – by suppressing opposition.

Whatever BBI recommends, Kenyans should study it carefully, asking themselves what it will actually achieve. And even without any referendum, they should make their views clear.