GHAI: 'Parliamentary or presidential system?' – Not an easy question

In the Sunday Nation, he returned to the theme. The benefits he said would include: more fairly conducted and less divisive elections, less political interference for political patronage reasons with the public service, including parastatal boards, and greater accountability of ministers – rather than the fake accountability that he thinks would come into being with ministerial question time in Parliament, as the President proposes. 

I, too, tend to favour a parliamentary system. I hope it would produce less of a God complex (or royalty complex, if you like) if the head of government emerges from the largest political party.

Though the “first among equals” is an over-simplification, the Prime Minister in a parliamentary system does tend to be more closely linked to and perhaps influenced by party.

In theory, the PM is more accountable because more easily removed than a President, whose removal requires impeachment. And the government in a parliamentary system is often thought of as more collective, less focussed on the individual.  Also, the PM and ministers may have more experience because they will have served time in Parliament, and probably held various other positions before they get to this height.

SOME DISADVANTAGES

The parliamentary system can be quite unstable. Traditional parliamentary systems did not have fixed term parliaments.  The PM is often at liberty to choose the date of elections, thus able to select a good moment when his or her party is most likely to win. In other circumstances, you might be inclined to describe this as rigging the election!

The power to remove a PM by a vote of no confidence can be very destabilising. If the ruling party lacks a sense of party loyalty and mission, and if the desire for the top dog position become the most important agenda item (which one can imagine being the case in Kenya), the opposition and disaffected members of the government party may be constantly plotting to move a vote of no confidence. The government can be constantly trying to prevent Parliament sitting if its main agendum is likely to be this. Budgets can be delayed, laws not passed.

Papua New Guinea amended its constitution to narrow the window in a parliamentary term during which a vote of no confidence may be moved. Yet only two PMs, in nearly 50 years, have served full terms.

The theory of parliamentary systems is that there is government and there is opposition. But PMs have been known to create so many positions of minister and assistant minister that so many MPs can be persuaded (bribed?) to take office and support the government that the opposition becomes very weak.

Because the government (the Executive) comes from Parliament, there is no separation between Parliament and the Executive. So, whereas President Mwai Kibaki (particularly before he was president) used to criticise the “Imperial Presidency”, in parliamentary systems there is sometimes complaint of the “presidential prime minister”. Parliament does not act as any effective restraint on the Prime Minister.

If no party clearly wins an election, it may take long to identify the new Prime Minister.

EARLY CONSTITUTIONAL DRAFTS

Until the very final stages of making a new Constitution for Kenya, all the drafts involved a parliamentary system. But those involved were conscious of the risks. So, the drafts said things like, ministers must come from outside Parliament.  This was to prevent MPs being “bought” by hope of office as well as to enable Ministers and MPs to focus fully on their jobs, and to broadening the pool of talent for Ministers. This was in the Constitution of Kenya Review Commission draft of 2002, but not in the draft that emerged from the Bomas National Constitutional Conference in 2004. However, in the first two Committee of Experts drafts, up to 10 ministers could come from outside Parliament.

All the drafts limited the number of ministers (intended to limit prime ministerial influence on MPs). And

THE HEAD OF STATE

Most parliamentary systems have a separate head of state (who is not head of government).  But in South Africa, the state president combines head of state and government, but comes from Parliament.

Early Kenyan drafts all included a separate head of state, who had a few more powers than you usually find for a modern head of state in a parliamentary system. This was intended to act is a restraining influence on the Prime Minister. 

OTHER CLAIMS

Governor Nyongo’s argument that in a parliamentary system the civil service will be allowed to do its job is interesting. But is he right?  

He mostly refers to parastatals and the way their chairs and board appointments are treated as matters of political patronage. But much of this is in violation of the law, as has been established by two major cases brought by Katiba Institute.

That it is happening again may not show something about a presidential as opposed to a parliamentary system but a continuing scorn for the law if it gets in the way of one’s exercise of power. Maybe this is more likely in a presidential system (and I have perhaps suggested so myself earlier). But we do have the legal tools to moderate this.

With the regular civil service (from principal secretaries down) I think we may have gone wrong long ago. The problem is particularly at the top. We have emulated the American system where senior public service posts are a matter for presidential appointment. And now with the creation of the Chief Administrative Secretary posts, government departments have three political appointees at the top: the CS, the PS and the CAS. What does this do to civil service morale? And civil service neutrality?

It certainly departs from the classic concept in the UK (at least in theory) that “no-one gets to be a Permanent Secretary unless they have shown that they can work well, over a long career, with a large number and variety of ministers of all political persuasions,” (described in a webpage by a former senior civil servant).

I believe we can improve the situation within the scope of the current Constitution, which may not be properly applied now.

Nyong’o assumes that in a parliamentary system, things are better. But this is by no means inevitable. That same webpage describes the behaviour of the Boris Johnson Government in the UK (and its brief successor government). He quotes a letter to The Times: “the prime minister and chancellor have sent a clear message to the civil service that they are not interested in impartial advice and intend to surround themselves with ‘yes’ men and women.”

Choosing a head of government through 337 elections might be less divisive than by the current system. But not all parliamentary system elections are peaceful – or rigging-free.

EMBEDDED ATTITUDES AND HABITS

You do not change a whole political culture by changing the words of the Constitution. Attitudes, expectations, the nature of political parties all affect the way in which a system actually operates.

Prof Ben Sihanya wrote about operating a presidential system with a parliamentary mindset.  I think we might find that we don’t really have a parliamentary mindset either.

The governing style of the 1960s to the beginning of the 2000s is deeply ingrained into Kenyan politicians.  The undermining of accountability, the gathering of all power into few hands, the blithe disregard for legal limits to actions, the nature of parties as fan clubs of individuals not sources of ideologies and policies, or democratic ideals and accountability, the primacy of ethnicity as the criterion for choice of loyalties.

CONCLUSION

Designing a parliamentary system is not easy. Avoiding some pitfalls may involve changes that affect some supposed virtues of the system.

We have not really tried to put into effect the constitution we have. Would a changed one fare any better, or would those old habits, and attitudes still be the dominating factors?