For a while now, Kenyans have listened to Githunguri MP Gathoni Wamuchomba take strong policy positions that appear to contradict her sponsoring party. Wamuchomba's stand is consistent with the progressive 2010 Constitution.
The 2010 Constitution has twin goals namely, limiting government by drawing boundaries on what is permissible and what is not. The Constitution circumscribes government power.
The second goal is affirmative government. This is the core of the Constitution’s transformative promise. The government will facilitate political and economic opportunities for the people; the state has a duty to secure some minimal level of human subsistence; the state should aim to create a fairer society; and in the use of resources, government must consider the unborn in a scheme of inter-generational equity.
The 2010 Constitution created a new political and governance paradigm shift. It is the people who are sovereign, not the Executive, not Parliament and not the Judiciary. It abhors men and women entrusted with public authority and hold public offices to sit and shield themselves from their constitutional obligations.
The transformative and reformative character of the 2010 Constitution is completely misunderstood by state and public officials, especially politicians, civil servants and security honchos.
To them, it has been continuity with the old-order mindset, traditions and practices that were repealed by the promulgation of the 2010 Constitution. This is what is severely problematic with the current politics and economy. Government officials and politicians still live in the past.
The 2010 Constitution gave the people of Kenya a brand new lifestyle. A break with the past and a breath of fresh air. It repealed and replaced the old status quo establishment. It gave birth to a wind of change that is unstoppable. The people of Kenya embraced this new different Kenya but politicians are still living in the past. The contradictions are being seen daily.
The 2010 Constitution fundamentally altered and changed the system of governance. It moved from a mongrel mixed system of presidential and parliamentary to a pure presidential system with devolved powers and functions.
This radical change explains in part why the Constitution has been so badly implemented. It is because this distinction and its implications are so poorly understood.
This further explains why the inter-party dialogue (Nadco) between the Azimio coalition and Kenya Kwanza is constitutionally incoherent and irredeemably defective. This arises from a fundamental misunderstanding of how a presidential system works and how it differs from a parliamentary system.
The constitutional presidential system has a dual mandate system. The two political branches, namely the executive and legislature, are directly elected. Each has an independent and distinct electoral mandate. This is unlike the Parliamentary system, which has only a single mandate system; it is only Parliament that is directly elected by the voters. In a presidential system, the government is not in Parliament.
In a parliamentary system, cabinet ministers are first and foremost members of parliament. In a presidential system, the president’s party is in parliament but only as a party not as the government. The president chooses his cabinet secretaries from outside parliament.
For this reason, the president does not need a majority in Parliament. In many presidential systems, the presidential candidate often wins the presidency, but his/her party loses parliament.
In a parliamentary system, the prime minister is the head of the party with the largest number of members in parliament. That means that he or she must at all times have a majority in parliament to remain prime minister.
It follows logically that without there being a government in parliament in a presidential system, the concept of an official opposition is irrelevant, incoherent and synonymous with a hangover of yesteryears.
There is a party that opposes the government in parliament but it is not the official opposition. The opposition includes the parliament, itself by vide of the Constitution design. In a parliamentary system, the majority party forms the government, and the minority party forms the official opposition.
In a presidential system, executive power vests in the president. The cabinet exercises powers delegated by the president. The president draws his cabinet from wherever the president finds the talent he or she wishes to work with, and his or her ministers are only a group of presidential assistants.
In contrast, in a parliamentary system executive power is vested in the cabinet collectively and decision-making is collegial. The prime minister is merely the first minister.
In a parliamentary system, a prime minister and his/her cabinet must have the support and confidence of parliament to continue as government. If they lose the support of a majority in parliament, they lose power and must seek a fresh mandate in an election.
In a presidential system, senators and members of the national assembly are not bound to vote for the president’s policies and laws. Senators and MNAs have a free direct electoral mandate from voters. This means that in matters before the House, they are not bound to vote with the president’s party.
In contrast, in a parliamentary system, the government has a leader of government business whose duty is to shepherd the government’s business through the House. The party of government is expected to vote with the government side and members are whipped to ensure that they so vote.
In a presidential system, parliament is a constitutionally independent policy-making institution of governance. It has the power to reject all the president’s laws and policy proposals. The president must negotiate with parliament.
This is seen happening daily in the US. Further, a member of either chamber can reject a law or policy if it is inconsistent with the interests of his or her constituents. This is unlike in the parliamentary system.
Consequently, Wamuchomba is fully in compliance with the 2010 constitutional order imperatives.
Transitional Justice and Human Security fellow @NdunguWainaina