CONSTITUTIONAL COUP

BBI a pernicious project to return imperial presidency

Kenya could soon transition into a political dictatorship that has only one branch of government- the Executive!

In Summary

• Proponents of the BBI project have openly signified obnoxious desires to permit the Executive to seize the sovereign power of the people.

• If the BBI proposals go through, the contractual relationship between the people and the government will disappear

President Uhuru Kenyatta and ODM leader Raila Odinga as they received the BBI report at the Kisii State Lodge on October 21, 2020.
BEHOLD: President Uhuru Kenyatta and ODM leader Raila Odinga as they received the BBI report at the Kisii State Lodge on October 21, 2020.
Image: ANGWENYI GICHANA

Over the past three years, Kenya’s political discourse has fundamentally revolved around a constitutional reforms agenda.

Two major factions have emerged. The first — led by President Uhuru Kenyatta and former Opposition leader Raila Odinga — has been held together by the shared position that reforming the country’s existing constitutional order would result in numerous opportunities for development.

The second formation — coalescing around Deputy President William Ruto — is persuaded that the 2010 Constitution is still appropriate and relevant to Kenya. If we fully implement it, Ruto’s supporters argue, there would be no need for new laws.

Even though the acrimonious altercations between the two factions have to date not been resolved, President Kenyatta’s government has moved with unrelenting determination to change the Constitution.

The Building Bridges Initiative, which followed the March 9, 2018, handshake between Uhuru and Raila, epitomises the remorseless clamour for new laws by critics of the current Constitution.

Evidently, the drive for a new constitutional dispensation is expected to conclude with a referendum, scheduled for June this year.

So what are we likely to lose because of the BBI project?

In my opinion, the BBI process undermines the doctrine of separation of powers, the principle of checks and balances and the sovereignty of the people.

We are, therefore, facing a real danger of creating an imperial presidency that could haunt our country for a long time to come.

But what is the meaning of an imperial presidency? An imperial presidency exists in countries where excessive powers have, by law, been given to the Executive branch of government.

In such countries, the Executive tends to be uncontrollable by exercising powers that may not even be anchored in the Constitution.

Presidential dictatorships in our present world include, but are not limited to, those in Cameroon, Equatorial Guinea, Eritrea, Uganda, Sudan, Afghanistan, Zimbabwe, Russia, Yemen, Congo Brazzaville, Rwanda, Tanzania, Angola and Djibouti.

One of the greatest qualities of the 2010 Constitution is that it protects the venerated Doctrine of Separation of Powers.

In the tradition of distinguished English philosopher John Locke (1632-1704) the legitimacy of any state is measured by the extent to which such state allows different branches of government to function independently.

Locke’s thinking was exquisitely consummated by eminent French thinker Baron De Montesquieu (1689-1755). In his work, Espirit des Louis (The spirit of the laws), Montesquieu argues a good government is one that executes its mandate within a framework that facilitates the Legislature, the Executive and the Judiciary to function independently. Moreover, the three branches of government must, by law, check and limit one another’s powers.

Under the BBI provisions, the Executive has, through the creation of the positions of prime minister and deputy prime ministers, been authorised to interfere with and control the legislative independence of Parliament. Besides, the Executive will not only appoint the Prime Minister, the Deputy Prime Ministers and some ministers from Parliament, it will also sack these officials without any reference to anybody.

A similar political design to create imperial governors has been proposed for the county governments. It is clear that if the BBI project sails through, governors will control county legislatures through the appointment of some MCAs to the county executives.

Beyond empowering the President to design and set the legislative agenda of Parliament, BBI proposals will compel the House to diminish its current loyalty to the republic. As a result, legislative sycophancy to the Executive will shortly be perfected to a fine art. This will not be good for Kenya.

Furthermore, the BBI licenses the Executive to interfere with judicial independence. Before we endorsed the 2010 Constitution, the Judiciary was largely controlled by the Executive. Most court rulings then were more political than professional. But because of the 2010 Constitution, courts have been able to independently pronounce themselves on various legal issues without necessarily worrying about possible Executive censure.

Two examples will illustrate the importance of an independent Judiciary. In 2014, sections of Parliament conspired with the Executive to pass national security laws that had been designed to neutralise the Bill of Rights. Besides, the security laws were crafted to force the closure of independent media houses, end the careers of independent-minded journalists and protect powerful people in government.

In February 2015, a five-judge bench of the High Court declared various provisions of the Security Laws Amendment Act no 19 of 2014 unconstitutional.

In that case, the Judiciary undertook to protect the republic by deactivating both the Executive arrogance and the Legislative tyranny.

Two years later, the Supreme Court surprised everybody when it nullified the results of the 2017 presidential election because of massive irregularities. Would the Judiciary have rendered the foregoing rulings in a jurisdiction that was perpetually controlled and intimidated by a powerful Executive?

JUDICIARY OMBUDSMAN

Obviously, the introduction of the Judiciary Ombudsman appointed by the President means our judges will shortly revert to the pre-2010 dispensation that had forced judicial offers to work for and massage the desires of the Executive.

The proposal to deploy a Presidential appointee to spy on judges is aimed at securing judicial compliance.

The cumulative effect of the BBI proposals is that the sovereignty of the people faces the threat of being extinguished. By authorising the Executive to control all branches of government, the BBI project has violated Article 1 of the Constitution that gives sovereign power to the people.

It is rather disturbing that proponents of the BBI project have openly signified obnoxious desires to permit the Executive to seize the sovereign power of the people. This is a constitutional coup.

If the BBI proposals go through, the contractual relationship between the people and the government will disappear, together with all the democratic rituals that compel leaders to be accountable to the citizens.

When this happens, the Executive will eventually transform into a horrendous autocracy. The ultimate outcome of the BBI project is going to be the regrettable installation of an Executive dictatorship in Kenya that is akin to the Yoweri Museveni state in Uganda

It is not lost on many people that most of the problems our country faces today revolve around the excessive power enjoyed by the Executive. But instead of reducing it to improve governance, the BBI proponents have chosen to enhance it. This will, no doubt, constrict our democratic space and hurt citizens.

While the BBI project gives the Executive immense freedom and power to interfere with the Legislature and the Judiciary, it does not correspondingly empower the courts and Parliament to also check Executive recklessness.

Consequently, BBI proposals on governance were deliberately designed to enhance Executive power, weaken Parliament and the Judiciary to create an imperial presidency in Kenya. Unless we rethink our rigid positions on BBI, Kenya could soon transition into a political dictatorship that has only one branch of government- the Executive!

The author teaches political economy and history at Kenyatta University