In Summary
  • The Committee of Experts (CoE), which I headed, was advised by the Naivasha Committee not to tamper with this pure presidential system agreement and several other new clauses because — in the words of Abdulkadir Mohammed — they were “deal breakers”.
  • The harmonised draft had proposed that a presidential candidate be allowed to contest both the presidential and parliamentary seats. The successful presidential candidate would then automatically lose his parliamentary seat. This clause was eliminated in the haggling at Naivasha. 
  • The other source of concern in devolution appears to be the vexed question of the provincial administration. It is immaterial that its officers are now christened County Commissioners.  For the governors, it remains a source of friction in terms of the need for an ultimate source of authority within the county.

I was startled in 2010 to learn that the now famous Naivasha meeting (of the Parliamentary Committee on Constitutional Review) had agreed on a pure presidential system of government.

This was shocking because, during the entire constitutional review debate, no person or political party had ever seriously proposed this system. 

The Orange Democratic Movement (ODM) — one-half of the Grand Coalition Government — and some civil society groups had always favoured a parliamentary system of government.

The Party of National Unity (PNU), sections of the civil society, and religious groups had stood for a hybrid system with a powerful executive President, perhaps a nominal Prime Minister and a Cabinet drawn from Parliament.

Later on, I heard a story whose authenticity I have never established. I was told that during the Naivasha meeting some MPs who wanted the old constitution retained decided to achieve this by creating a stalemate. 

The idea was to offer a pure presidential system as a compromise, which ODM would automatically reject in favour of a parliamentary system that PNU did not support.

The resulting stalemate would save the old constitution. It was said that ODM, believing this to be a bluff, accepted the pure presidential system. PNU, on its part, also thought that ODM, in accepting the bluff, was only bluffing. So PNU maintained its original bluff. And the pure presidential system was born.

The truth of this tale must be left to historians. However, it is a fact that in his writings Prof Anyang’ Nyong’o, the Senator for Kisumu, is ever nostalgic on the missed opportunity to have a parliamentary system.

ADVISED NOT TO TAMPER WITH

The Committee of Experts (CoE), which I headed, was advised by the Naivasha Committee not to tamper with this pure presidential system agreement and several other new clauses because — in the words of Abdulkadir Mohammed — they were “deal breakers”.

It is, of course, too early to audit the success or the failure of the 2010 Constitution. However, some events always prick me into asking: Is the ghost of Naivasha beginning to haunt us? The ghost here is the Parliamentary Committee meeting, which tampered with the CoE’s draft constitution.

The harmonised draft had proposed that a presidential candidate be allowed to contest both the presidential and parliamentary seats. The successful presidential candidate would then automatically lose his parliamentary seat. This clause was eliminated in the haggling at Naivasha. 

We had looked at the experiences in several jurisdictions where the exclusion of formidable presidential candidates from the mainstream political institutions had caused negative feelings of exclusionism and created disharmony. 

This is not restricted to the candidate alone, but also the supporters. It is a fact that some of these unsuccessful presidential candidates retain a large constituency of supporters running into millions. This group feels excluded and unrepresented.

Going by what we witnessed at Uhuru Park on May 31 when former Prime Minister Raila Odinga returned from the US, and subsequent political activities, we need to analyse the wisdom of excluding this clause. A situation like this can breed national instability owing to the feelings of exclusion. Many believe that the safer bet is “even if he is out of the room let him remain inside the house”.

The other clause that Kenyans seem to worry about is the exclusion of MPs and Senators from appointment as Cabinet ministers (or secretaries). Again, this is a byproduct of the pure presidential system. I have heard complaints that the system has no mechanism for the “promotion” of politicians. Unless you become president or deputy president you are forever condemned to remain an MP or a Senator.

The spice, glamour and attraction of political office are lost. There are also complaints that this system does not offer the opportunity to directly interrogate ministers in the House.

POWER-HUNGRY POLITICIANS

These can be treated as the cravings for office by power hungry politicians. However, in the rural areas wananchi are also grumbling. They say they no longer “feel” the government. They long for the days when an MP/minister would visit the grassroots to be “with them” and explain government policies at their level and in their grassroots language — including dancing, singing, cheering and generally inspiring the crowd.

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