SEPARATION OF POWERS

Lessons from US election and how BBI can effect them

Our Constitution borrowed heavily from the American political system and governance structure

In Summary

• The first lesson is the tradition of respecting the right to information, leading to strong media. The second positive lesson is the role of the electoral agency.

•  The BBI report in its current form does not cure this incestuous relationship between the state and the Executive. It is the major source of our electoral conflicts.

The Building Bridges Initiative was supposed to respond to various challenges facing our nationhood.

Priority was given to the threat of cyclical electoral violence attributed to the winner-take-all situation. The concentration of power in the presidency was also identified as a source of conflict in the governance structure.

The coming together of President Uhuru Kenyatta and former PM Raila Odinga was seen as a way to structurally deal with the perennial challenges to Kenya’s unity. However, the BBI process has proved to more divisive than its intended objective.

Deputy President William Ruto, who was conspicuously missing during the signature launch on Wednesday, fired the first salvo during the BBI launch at Bomas of the Kenya.

His carefully crafted criticism was delivered to a crowd of BBI enthusiasts and thus drew cynical boos and heckling. Interestingly, his opposition has since gained traction and received support from key stakeholders.

However, the pastoralist communities and people with special needs have since voiced their displeasure publicly. Meetings were quickly organised to assuage their fears. Then the Council of Governors came calling, followed in quick succession by the Catholic Church and recently the Supreme Council of Kenya Muslims. Clearly, the BBI train is not on smooth rails and risks halting, if not derailing.

Meanwhile, In the same period, the presidential election in the global icon of democracy, the US, has had its share of problems.

When the election was called in favour of Democrat Joe Biden, President Donald Trump refused to concede. This was uncharacteristic of American politics but quite in sync with Trump’s personal traits. He has launched myriad legal challenges in major states with a view to annulling the vote outcome.

He had hoped to cajole state legislatures in Republican strongholds to overturn the popular vote to his favour. The strategies have largely fallen flat.

The courts in Georgia, Arizona and Pennsylvania have dismissed vote manipulation claims. These are incidents associated more with developing countries, especially Africa. That America is caught up in this embarrassing situation is a lesson for other countries.

States that are putting efforts into strengthen their democratic environments can learn from the hiccups of the American election. Kenya, through the BBI process, is in that moment.

Our Constitution development borrowed heavily from the American political system and governance structure. The pure presidential system is the American model designed as a protest against the colonist British monarchy and parliamentary system.

It is their distaste for the monarch that the term 'imperial presidency' was designed to tame, in light of what were considered the excesses of the first president, George Washington. Any and all other pure presidential systems the world over have been modelled on the American structure.

Kenya’s Independence was structured on the same and the first constitution drafted with heavy assistance from the US. The 2010 Constitution removed any pretences to parliamentary democracy. We are firmly a pure presidential system. The weaknesses witnessed in this system through the US election may help us remove the stumbling blocks in our governance system.

The first lesson is the tradition of respecting the right to information. This has led to unfettered freedom of conscience, speech and association. These principles have led to establishment of independent media in the US, which is robust and engages in investigation and collection of facts to inform their news broadcasts.

While they may have preferences in the elections, they nevertheless, announce the true outcome without hesitation. Fox News network was pro-Trump while CNN was openly in the opposition since 2016. However, it was Fox that first called the election for Biden when it was clear Trump could not win.

The media has, therefore, been the vanguard of democracy and the protector of citizens' will against the onslaught of those in power. Kenyans should thus use the BBI moment to further protect the independence and security of the media. What happened to media houses during the elections of 2007, 2013 and 2017 are inimical to democracy.

The second positive lesson is the role of the electoral agency. Despite threats, the election officials across the states remained faithful to their call of duty and declared the results as they received them. They never feared for their jobs in spite of the fact that their function fell under the Homeland Security Department.

The President thus has direct authority over them as he appoints the secretary of that department. When candidate Trump made unsubstantiated claims about vote tampering, they came out to defy him and declared the election was secure and credible.

However, the most significant for Kenya would be the review of the institution of the presidency. The US has fused the functions of the Executive with those of the state in the Office of the President. Having these two functions in one office has exposed the soft underbelly of the doctrine of separation of powers.

It has demonstrated that this doctrine has largely depended on the good manners of the occupants of the White House. As head of state, Trump has fired the head of the Electoral Agency together with his manager of Cybersecurity.

He also fired the Secretary of Defence when he refused to order the military to disperse protesters. He acted as head of state even though he was responding to threats to him as the head of the Executive. As a candidate, he has refused to accept the election results and there is no one above to reprimand him. This is the same situation in Kenya.

The BBI report in its current form does not cure this incestuous relationship between the state and the Executive. It is the major source of our electoral conflicts. The report has deepened the presidency instead of rectifying the winner-take-all situation. That is why opponents are sarcastically calling the proposal a return to imperial presidency.

For avoidance of doubt and clarity of performance of functions, the head of the Executive should be at the same level with the Speaker and the Chief Justice. Ancillary to these would be the heads of defence forces and constitutional offices and commissions. The head of state would be above them all and act in a non-partisan way and in the interests of the state.

The head of the Executive would be nominated by the party with the majority in the National Assembly and may be titled Prime or Chief Minister. Only the nominating party can fire him or the National Assembly through a vote of no-confidence. The head of state may just remain as President or Governor General as we had before December 12, 1963.