It is a bit depressing to begin the year with proposals to amend the Constitution.
Not because the Constitution is perfect — there is no such thing as a perfect Constitution — but because of the political manoeuvring that one can see at work.
Professor Ben Sihanya has commented on the tendency to try to work a presidential constitutional system with a parliamentary mindset. And in various proposals to change the Constitution, we can often see this yearning for a parliamentary system, or perhaps for something more like the pre-2010 Constitution.
WHAT'S THE DIFFERENCE?
In a classic parliamentary system the head of government is a member of Parliament. So are the members of the Cabinet. The head of government (the Prime Minister, PM) gets there because of the support of the majority of Parliament, and can lose the position if he or she loses that support.
The ability to offer Cabinet positions to MPs gives the PM considerable power over them. Usually a separate person is the head of state — President or monarch — with mainly ceremonial and formal powers.
In the American-style presidential system (which the Parliamentary Select Committee that made last-minute changes to the Constitution in 2010 indicated we were adopting), the legislature (Congress in the US) is much more independent of the government.
The President needs support in Congress to pass laws, and the budget, but cannot be removed by a simple vote of no confidence — only by the elaborate process of impeachment.
In fact, in the US it is not uncommon for the majority in at least one house of Congress to be of the other party than the President for part of the President’s term of office.
Jomo Kenyatta decided it was not enough to be head of government, he wanted to be head of state, too. But he still wanted a seat in Parliament. However, eventually the Constitution pretty well eliminated the risk of a vote of no confidence: the MPs would then have to face a general election. And presidential control over MPs was reinforced by the ability of the President to appoint a large number of ministers and assistant ministers from among MPs.
Thus was born what MWAI Kibaki used to call (until he became President under the Constitution) the “Imperial Presidency”. This was made worse by the exaggerated deference to the president that stemmed from the powerful personalities of early presidents, and from the one-party state, and bedevils our politics today, when the MPs, too, are not really prepared to play their part as one arm of government.
BBI PROPOSALS
The BBI proposals had a lot of the parliamentary. A Prime Minister (to be the person with most support in Parliament) and removable by a vote of no confidence, a Leader of the Opposition (the defeated candidate in the presidential election), and Ministers being MPs.
THE RUTO ERA
President William Ruto has also shown a leaning towards parliamentary concepts and the BBI. The creation — for Musalia Mudavadi — of the position of Prime Cabinet Secretary was the first.
He is even less of a Prime Minister than Raila Odinga was in 2008-10. He does not owe his position to support in Parliament. Parliament can vote that he should be removed and the President must comply — but this is not different from the position of other CSs.
The PCS is not head of government. The PCS is reminiscent of the old-style Vice President: Appointable and easily dismissible by the President. In fact the PCS is less of a Prime Minister than the Ugandan PM or Tanzanian PM, each of whom who is “the Leader of Government Business” in Parliament or the National Assembly.
It is clear that Ruto wants to have a firm hand over Parliament. He has courted members who would be expected to be part of the Opposition. Whether any of these should lose their seats for effectively “crossing the floor” is yet to be resolved by the courts. He has appointed CSs from among parliamentarians (though, of course, they need to resign before taking office). It is clear that MPs now believe they can get something from supporting the President — making them less independent?
Now Ruto proposes that Parliament create 'question time' where CSs could come to answer questions in the full house. Not necessarily a bad thing: it would enhance transparency and accountability. We could see how well the CSs understand their jobs.
Interestingly, there have been many discussions in the United State about introducing question time in the US Congress — so the idea of having such an institution in a presidential system is not outlandish at all.
In the US the idea was to have presidential question time. Would President Ruto be prepared to participate? There is no mention of this in his memorandum to Parliament.
LEADER OF OPPOSITION
This has attracted a lot of attention, particularly because Raila Odinga made a similar suggestion. It clearly harks back to the parliamentary system in which an institutionalised Opposition is usual.
With a leader of the Opposition who is supposed to be head of an alternative government in waiting — and a shadow Cabinet of MPs who focus on particular briefs in order to challenge the sitting government effectively on the issues and again be prepared for office if this should occur.
In the BBI the idea appeared — and like so many of these reform ideas, it looked like a way to accommodate politicians who failed to get into office.
The idea is that the best loser (the person who came second in the presidential context) should get a seat in Parliament to head the Opposition. In fact when Raila raised this idea after the elections there was talk of the loser and their running mate getting seats in the National Assembly.
This idea raises several fairly obvious difficulties, particularly in view of the possibility of close votes and of small differences in numbers in the National Assembly.
Suppose the party or coalition of the best presidential loser actually has a majority in the National Assembly? The BBI said the best loser would then not get into the Assembly — but this was because the Prime Minister would have come from that largest party.
On the Ruto proposals there would be no such PM from the National Assembly. Should he/she be there to lead the government party? What is the role of the Leader of the Majority under the Constitution?
Suppose the numbers were very close indeed and to have one or two best presidential losers join the House would turn their party into the largest party?
What would be the relationship between the “Leader of the Opposition” and the Leader of the Minority under the Constitution?
Suppose the best presidential loser comes from a party that is not in alliance with the biggest non-government party or group, but an outlier? Or suppose the non-government MPs don’t want this person to be their Leader? These scenarios are unlikely but not impossible, especially if there was one big party or coalition, while a largish number of small parties made up the Opposition.
Would the presidential loser(s) have a vote? If not some of these problems might not arise. But what credibility would such Leaders have?
A REFERENDUM?
Raila wants a referendum — could this be intended as a sort of re-run of the August election intended to show that Raila is really the more popular? Remember 2005?
Ruto does not. Is it really because of the cost (which would be considerable)?
How would the Supreme Court view a constitutional amendment overriding its decision that “A Fund [like the CDF] directed at service delivery … can only be constitutionally complaint if structured in a manner that does not entangle members of Legislative bodies ... in the discharge of the service delivery mandate, however symbolic”?
Making or changing a Constitution — which is supposed to have some permanence and contribute to stability — for the current situation, and current personalities, or to placate politicians (like the MPs on the CDF) is unwise, especially poorly thought through changes.
(Edited by V.Graham)
