Commentary (by Mugumo Munene) - Death knell tolls for all-powerful presidency

Ref:http://www.nationmedia.com/dailynation/nmgcontententry.asp?category_id=1&newsid=119645


Story by MUGUMO MUNENE
Publication Date: 3/23/2008

Mzee Jomo Kenyatta built it, Daniel arap Moi fortified it and Mwai Kibaki is living it. But the all-powerful presidency that controls the lives of Kenyans from the cradle to the grave is headed for the grave in the current wave of reforms expected to last for the next year.

The first signs came from Parliament this week where the constitution was amended to create the positions of prime minister and deputy prime ministers and where key political players – President Kibaki and Prime Minister-designate Raila Odinga – promised a new constitution in the next one year.

It was the first time in the country’s history that a sitting president participated in debate in Parliament, a move which was almost unthinkable just a few years ago.

This week’s constitutional amendments partially redefined the structure of government and portrayed a nation in the mood for reforms when Parliament sealed the power-sharing deal between President Kibaki and Mr Odinga.

In the aborted search for a new constitution before November 2005, Kenyans who made submissions to the now-defunct Constitution of Kenya Review Commission spoke passionately about the presidency and appeared to resent an institution they described as all-powerful, imperial, dictatorial and authoritarian. They spoke of their wish to have the powers checked or redistributed to other institutions of government.

The larger-than-life presidency has occupied the lives of Kenyans from news bulletins to the face of currency notes and coins to the names of public institutions and to the making and, literally, unmaking of civil servants, who the courts determined in the 1980s, serve at the pleasure of the President.

Constitutional expert Githu Muigai now predicts that Kenya’s imperial presidency is doomed.

“Kenya has gone full circle from an authoritarian, autocratic and unaccountable (colonial) governor to an imperial, all knowing, all powerful and unaccountable president. The mechanism of public accountability across all spheres of national life are at best moribund and in many cases non-existent,” Prof Muigai said.

“Whereas it is difficult to say what the constitutional and political changes will be necessary, we can say with quite some degree of confidence what will not be necessary: the imperial presidency.”

Kenya’s first attorney-general, Mr Charles Njonjo, the man who moved some of the constitutional amendments that empowered the presidency more, is now of the opinion that the office should be more democratic and less powerful.

“It should not be powerful. It should not have dictatorial powers,” Mr Njonjo told the Sunday Nation this week. “Decisions should be made by the Cabinet.”

The former AG and one-time Minister for Constitutional Affairs said that the re-introduction of the office of prime minister has come too late in the day and should have been established in 1968, when the then Nyeri MP Theuri Kiboi brought a Bill to Parliament seeking the same.

The Bill was shot down even as Mr Kiboi, in defeat, warned that resisting the introduction of a PM’s post would push the country to the brink in future, a prediction that appears to have come true this year.

“It’s a pity that it didn’t happen. It should have been passed,” Mr Njonjo said. “There were a lot of partisan interests and people were thinking about who was going to occupy the office.”

Former constitutional review commission secretary P.L.O. Lumumba said Kenyans should be decisive about what governance structures they want.

“We created a demigod of a presidency that went from the bedrooms to the dining rooms to everywhere,” said Dr Lumumba.

“At some point, Kenyans thought that the president was infallible,” Dr Lumumba said. “What Kenyans said they wanted was an accountable, impeachable president who is subject to parliamentary oversight and judicial check.”

“What has happened now, the passage of the National National Accord and Reconciliation Act is a fire-fighting solution; a stop-gap measure,” he said. “The amendments have given us thinking time. We need a comprehensive review of the constitution and I hope that Kenyans will make a clear choice.”

The envisaged constitutional reform is expected to redefine the presidency, which was strengthened almost beyond reason through serial constitutional amendments passed between 1964 and 1997 and indications are a future presidency with reduced powers.

In the coming days, for instance, the President will appoint a Cabinet of historic proportions where half the members will come from the party that contested the elections with him just months ago. He will do so in consultation with the PM-designate, which is a historic first in the country.

Presidents Kenyatta and Moi made their appointments without any formal consultations. Usually, they made unilateral decisions, which were at times informed by their respective kitchen cabinets or the Intelligence network.

It was the same prerogative that President Kibaki used to sidestep the MoU that created Narc, swept Kanu out of power and ushered him into State House in 2002. Some observers now say that the discarded MoU subsequently created a political crisis for the President and gradually eroded his popularity in his first term.

The powers of the presidency have for the past 40 years been abused or used arrogantly or without regard to popular opinion even when it mattered the most.

The latest round of attacks on presidential powers came ahead of last year’s General Election, when President Kibaki unilaterally appointed nine electoral commissioners a month to the elections and at a time when leaders in the competing political camps had strongly expressed fears of rigging.

The critics had wanted parliamentary parties to nominate candidates to the commission to create a critical measure of confidence in the body that runs elections.

The appointments were seen to have been made in bad faith given that President Kibaki ignored the precedent set in 1997 when the then President Moi consulted with parliamentary political parties before making appointments to ECK even though the law does not require it.

For the most part though, Mr Moi had a field day exercising presidential powers in a way that was dramatic and at times bordering on the absurd. He would even hire and fire public officials in what came to be referred to as roadside declarations.

Following the 1997 elections, for instance, Mr Moi named his Cabinet but did not fill the vice-presidency. For the next 14 months, the country was without a vice- president. He reappointed Prof George Saitoti during at stop-over at roadside kiosks in Kinungi, Limuru, and did it in a fashion that shocked many. He said: Kama itaongeza sufuria za ugali wacha Saitoti aendelee. (If it increases the pots of maize meal, let Saitoti continue.)

President Kenyatta before him had treated Kenyans to a string of similar pronouncements and absurdities. He engineered the 15th amendment to the constitution, giving the president powers to pardon a person guilty of election offences.

The move to amend the constitution was touched off by the situation of the President’s former cell mate and friend Paul Ngei, who was found guilty of an offence that was to consign him to political oblivion. After the amendment sailed through, President Kenyatta promptly pardoned his friend.

In his years in office, Mr Kenyatta was regarded with awe and viewed as larger-than-life. Mr Moi after him perfected the image. The two men would never entertain political dissent. President Kibaki’s decision on public appointments has equally attracted fury and resentment from critics.

Key appointments have especially attracted sharp criticism of the powers vested in the president, which before 1997 included the power to detain without trial and unilaterally declaring a state of emergency. The criticism of presidential powers has over the years become one of the key planks of the clamour for constitutional reforms that started in the late 1980s.

It had not always been this way. Before December 12, 1964, executive power was shared between the governor general and the premier. The position changed drastically on the same day that Kenya became a Republic and when the powers of the governor general, then the Head of State on delegation from the Queen of England, and those of the prime minister were rolled into one and vested in the presidency.

The Kenyatta government sponsored more Bills after 1964, which demolished regional governments and increasingly strengthened the presidency.

“They created a presidency that was almost a power unto itself; all powerful, all knowing and omnipresent,” Prof Muigai said. “Parliament dwindled in significance and the Judiciary timidly kept its distance from ‘political matters’, refusing to be involved in any attempt to control the executive.”