Some people seem heavily influenced by the practice of past presidents. This is of limited value. President Jomo Kenyatta died in office. President Daniel Moi finally accepted that he had to go after having been in office for 24 years, and at the age of 78. He had tried to influence the choice of his successor (by having Uhuru as his “project”).
Mwai Kibaki left at the end of his two terms. He was by then also 78, having had poor health for much of his presidency, beginning in a wheelchair because of a road accident during campaigns, and having also suffered some strokes.
AMERICAN EX-PRESIDENTS
Since our system is based on the American one, what happens in that country?
Ex-presidents who have served only one term can stand to be President again – as Donald Trump may do. A few have had active political careers. John Quincy Adams (1825-29 – before pensions) became a successful Congressman, elected nine times to the House of Representatives.
It is often rather counter-productive for a former president to attack a successor. But Barack Obama did criticize Trump in several speeches, especially in 2020 (in other words in the run-up to the presidential election that year).
Writing (especially their memoirs), making speeches (for which they are often extremely well paid), teaching at university, are among the common pastimes of retired US presidents. But there is no law about what they may or may not do, at least in terms of being political. They are paid a substantial pension and various other post-presidential perks (only since 1958).
PARLIAMENTARY SYSTEMS
In parliamentary systems things are different. The head of government (the Prime Minister or similar) will be an MP, and in some systems representing a constituency (in the UK, Australia, Canada, India, some in New Zealand). Jacinda Ardern is still an MP in New Zealand, though no longer Prime Minister.
Winston Churchill, PM in the UK for most of the Second World War, remained an MP until 1964. Indeed he was PM again from 1951-55. Boris Johnson (2019-22) is still a member of the House of Commons, as is the Prime Minister-for-a-month, Liz Truss. Some have stayed for a long time without being their party leader any longer.
But many British ex-PMs do leave the House – sometimes to earn money in the private sector. And their absence - and the absence of their experience – is much regretted by some. They don’t get a special pension as ex-PMs, just the same, contributory, pension as other ministers.
WHAT DOES THE KENYAN LAW SAY?
The only provision in our Constitution about retired state officers says that one who has a state pension may not hold more than two positions in any state organ or state company. This was inserted in the Constitution because people felt that retired officers were benefiting too much from state positions.
The Constitution has nothing preventing a retired President from engaging in political activities, even as a member or officer of a party.
The law that has been discussed recently is the Presidential Retirement Benefits Act, 2003. This does try to prevent a retired President holding office in a political party for more than six months after ceasing to be President. And it puts forward a vision of former presidents playing “a consultative and advisory role to the government and the people of Kenya”.
WHY THE SENSE THAT PRESIDENTS MUST FADE?
If prime ministers in parliamentary systems can remain active in politics, why this sense that Presidents must beat a decorous retreat? Those former PMs were heads of government, and their heads of state (president or monarch) probably had to act on their directions.
I sense that it is another side-effect of the presidential system, and its stress on glorification of - one person. In the Kenyan context, when the Presidential Retirement Benefits Act was passed, MPs were keen to encourage presidents to leave office (accepting their term limits).
I also sense they had in mind towering figures such as Kenyatta I and Moi (who had retired the year before). Indeed, it is a bit odd that they do not seem to have factored in the ongoing discussion on a parliamentary system (at the then current Bomas National Constitutional Conference).
The Constitution says the President “is a symbol of national unity” and must “promote and enhance the unity of the nation”. Maybe this is partly responsible for the feeling that the President (or retired presidents) should not be party political. It is a bit unrealistic.
The President gets there by being elected by usually around half the population. So long as we still have multi-party democracy he (maybe one day she) will be associated with a party or at least a coalition.
In fact, those phrases came into draft constitutions when the recommended model was of a parliamentary system, when the President would have been the formal head of state and not head of government. They don’t fit the current system so well.
THE PENSION
The President’s pension is very generous indeed. A lump sum, regular payments totalling well over 100 per cent of the salary of a president (to include entertainment and housing allowances, water electricity and telephone), four vehicles and fuel allowances, office space, medical insurance, and 4 overseas trips a year.
Of this, only the lump sum reflects how many years the retiree served as President. It is designed to compensate a person who is really no longer politically active. It would be understandable for people to think that someone who remained a party political figure is being subsidised for those activities by the taxpayers.
I suspect this Act had Moi in mind (and maybe Kibaki, who originally said he would serve one term). Did they think about the person who lost an election but then might stand for a second term later? (In the US, ex-presidents, including Trump, get their pension even after only one term.)
This Act allows the National Assembly, by two-thirds, to deprive of the pension a person who was removed from office as President for violation of the constitution. Interestingly there is another Act that applies to various other state officers including Deputy Presidents, which tried to do the same. This provision was held unconstitutional by the High Court.
The 2003 Act also provides a similar mechanism for penalising politically active ex-Presidents. The National Assembly may pass a resolution that a retired President should lose his or her retirement benefits for holding office in a party beyond the six months cut-off date, or actively engaging in the activities of any political party beyond that date. The resolution must be passed by at least two-thirds of the MPs. This is an attempt to ensure it is not a party dominated decision. But if a President does gain, or manages to woo, a two-thirds majority, it could be a party dominated decision.
One could argue that this is the only penalty – so that if Uhuru does not mind giving up the perks he can remain active, or if MPs did not vote with sufficient enthusiasm to impose the penalty he could remain politically active and keep the perks.
Some have suggested that this provision is unconstitutional. Does it deprive ex-presidents of their Article 38 right to political action? Or freedom of expression? Or treat them unequally? Deciding if this does violate rights, and if so if it is justified under the Constitution would require a court case.
FINAL THOUGHT
A 2013 amendment to this Act that increased some of the benefits was declared unconstitutional (by Justice Isaac Lenaola) because the Salaries and Remuneration Commission had not been involved in the decision.
A court might well hold much of the original 2003 Act unconstitutional - except when it applies to presidents under the old Constitution — for the same reason.
