MEMORANDUM TO THE COMMITTEE OF EXPERTS BY NARC KENYA
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government: but experience has taught mankind the necessity of auxiliary precautions.
James Madison, The Federalist, No. 51
We welcome the publication of the Harmonized Draft Constitution of Kenya pursuant to Section 32(1))(a)(i) of the Constitution of Kenya Review Act, 2008. Under Section 29 of the said Act the Harmonized Draft Constitution hereinafter referred to as the HDC was supposed to be based on the following:-
29. In the performance of its functions under this Act the Committee of Experts shall draw upon the view and materials collected or prepared by the various organs of review under the expired Act, including but not limited to –
(a) the summary of the views of Kenyans collected and collated by the Commission;
(b) the various draft constitutions prepared by the Commission and the Constitutional Conference;
(c) the Proposed New Constitution, 2005;
(d) documents reflecting political agreement on critical constitutional questions, such as the document commonly known as the Naivasha Accord;
(e) analytical and academic studies commissioned or undertaken by the Commission or the Constitutional Conference.
The publication of the Harmonized Draft Constitution by the Committee of Experts (CoE) a fortnight ago has been greeted with a collective sigh of relief. First, because cynicism permeates the constitution-making project in Kenya and secondly because the experts have formally complied with Section 32(1)(a)(i) of the Constitution of Kenya Review Act, 2008 which required them to publish a harmonized draft. Welcome as the publication of the Harmonized Draft Constitution hereinafter referred to as “the HDC” certainly is, as we enter the third week of public debate on its content, it is obvious that the HDC is a fairly raw embodiment of the Kenyan people’s objectives in the clamour for a new Constitution. Accordingly, the CoE is enjoined to carefully listen, consider and act on the profound issues that a cross-section of Kenyans are raising on the contents of the HDC.
There are two stages at which the defects in the Harmonized Draft Constitution may be corrected.
The first stage is one of incorporating under section 32(1)(b) of the Constitution of Kenya Review Act, 2008,the views which the Kenyans are now making on the published draft. Under section 32(1)(c), the committee of experts is required to present the revised version to the Parliamentary Select Committee to deliberate and consensus building on the contentious issues. It is this Select Parliamentary Committee which will make the appropriate recommendations to the House.
The second stage will be when the corrected harmonized draft is introduced in the National Assembly under section 47(2)(b) of the Constitution and 65% of the members decide to effect a change. Under that section, the National Assembly has power to make any alteration to the draft. It is the draft which comes from the National Assembly which will be put to a referendum for a vote.
I. GENERAL - THE MAJOR SHORTCOMINGS OF THE HARMONIZED DRAFT CONSTITUTION AND CURES OF THOSE DEFECTS
The defects enumerated below can, after soul-searching by the Committee of Experts and the National Assembly, be corrected at either of these stages.
1. The Inherent Flaws of the HDC arising from the Nature of the Review Process.
In the wake of the November, 2005 Referendum debacle, H. E. President Kibaki appointed a Committee of Eminent Persons to evaluate the constitution review process; make recommendations on how to conclude the process; and recommend a process for healing and reconciliation. The Committee recommended three institutional options as the most feasible in the following order of priority:-
i. A Constituent Assembly, supported by Experts, and a Referendum;
ii. A Committee of Experts and a Referendum, and
iii. A Multi-Sectoral Forum backed by a Committee of Experts and a Referendum.
The Review Act is based on Option Two above and therefore is the second best option according to the Ambassador Bethuel Kiplagat-led Committee. The said Committee stated that merits of the Experts Option include the fact that it is relatively cheap and cost effective, is potentially fast, politically neutral and entails no other institutional arrangements. The listed demerits of this option include its non-participatory and inclusive character (not people-driven), danger of reducing constitution-making into a technical exercise, possibility of cases over representation and low legitimacy of process and final product. In many ways the current public debate vindicates the Kiplagat Committee conclusions.
In the review Act the inherent weaknesses of the Expert Option is compounded by the fact that the CoE was required to produce a harmonized draft largely based on the Bomas draft and the 2005 Referendum draft. The harmonization of these drafts is, at bottom, an exercise of making political choices and decisions given that conceptually the two drafts are based on diametrically opposed visions of society, ideology and the role of the state. In real terms the HDC is based on the contested view that the object of law and basis of rights in the Kenyan State are simultaneously the individual and ethnic communities in which each citizen is deemed to owe allegiance first and secondly to the Kenyan nation-state.
We reckon that whereas it may be too late to cure problems of legitimacy wrought by the inherent weaknesses of the Experts Option of review, it is possible to improve the content of the HDC to ensure it accords with objective, universal and sound democratic, political and constitutional principles as opposed to political expediency and presumed racial or ethnic exceptionalism of the Kenyan people.
2. Non-Compliance with the Review Act
The fourth defect of the Harmonized Draft is that it offends section 30(2) of the Constitution of Kenya Review Act, 2008, in that it does not identify those issues in it which are agreed by Kenyans and those which are not and are identified as outstanding. If there are any agreed issues in it, they are not identified. The concept of “the issues that are not contentious are identified as agreed and closed” is problematic in that every Constitution has a logic of its own which is given effect by institutions created by different chapters. For instance, the adoption of the American presidential system of government results in institutions which are different from those which come from the adoption of the Indian-type of parliamentary system of government. The Committee of Experts should have given its interpretation of that expression to enable Kenyans to apply the law which the Committee is supposed to be following. That defect should be cured by the Committee through identifying those issues which are agreed and those which are not.
3. The Committee has usurped the Mandate of the Independent Boundaries Review Commission and illegally extended the terms of the IIEC and IIBRC
Under Section 41C of the Constitution the functions of the Interim Independent Boundaries Review Commission include:-
i. Making recommendations to Parliament on the delimitation of constituencies and local authority electoral units and the optimal number of constituencies.
ii. Making recommendations to Parliament on administrative boundaries of districts and other units.
The existing constituencies and administrative boundaries are traceable to the recommendations of the Boundaries Commission appointed by the colonial government in 1962 which drew of the constituency and regional boundaries contained in the 1963 Constitution. The said Commission collected and collated views of Kenyans on their preferred political and administrative representation. Similarly the Andrew Ligale-led IIBRC has been going around the country to obtain the peoples views on electoral and administrative boundaries.
Given the foregoing, we are of the view that the CoE exceeded its statutory powers in arbitrarily dividing Kenya into the regions and counties set out in the First Schedule of the HDC pursuant to Article 5(2). We strongly recommend the deletion of the First Schedule until Parliament approves the recommendations of the Ligale Commission.
Under Sections 41A(13) and 41B(11) of the Constitution the respective terms of the Interim Independent Electoral Commission (IIEC) and IIBRC are set out in the following similar terms:-
The Commission shall stand dissolved twenty four months after the commencement of this Section or three months after the promulgation of a new Constitution, whichever is the earlier.
Notwithstanding the above categorical provisions, in Section 21 of the Seventh Schedule the CoE seeks to extend the terms of these interim commissions, “for a period of twenty-four months from the date of the first appointment of their respective commissioners under the Constitution in force immediately before the effective date, unless the period is extended by resolution of the National Assembly, and the Independent Electoral and Boundaries Commission shall be appointed under this Constitution before the expiry of the period”.
Without doubt, this provision extends the tenure of these commissions for indefinite period notwithstanding the fact that the intention of Parliament was to put them in office for a temporary period that could not go beyond the promulgation of a new constitution. As matters stand, under the HDC there is no assurance that the next general election will not be directed and supervised by the IIEC which was appointed through a highly politicized process in which a Committee of MPs made the selection or nominations for formal appointment by the President.
4. The Role of Parliament During the Transition to a New Constitutional Order
Whereas the current Parliament is not elected on the principle of one person–one vote, Section 47(2)(b) of the Constitution empowers the National Assembly to effect change on the draft tabled by the Parliamentary Select Committee after the CoE incorporates the views of the public into the HDC. Moreover by virtue of Section 41C of the Constitution, Parliament is the gatekeeper, if not the principal maker, of the next Constitution because it has exclusive mandate to determine the constituency boundaries, the optimal numbers and those of the local government electoral units. Under the current Constitution, the minimum number of constituencies is 188 whilst the maximum number is 210. The Interim Independent Boundaries Review Commission which was established after December, 2008 constitutional amendment, will merely make recommendations to Parliament. Section 4 of the 6th Schedule provides that the National Assembly Existing immediately before the effective date of the new constitution shall continue as the national assembly for the purposes of the constitution to come.
The solution to the problem created by Section 41 (c) can only be solved by amending that section and partly requiring that the Interim Independent Boundaries Review Commission alone determines on the basis of one person one vote, the number of constituencies the country should have and also the number of local government electoral units and their number. Such an amendment will take away from the Parliament the power it has under the current Constitution to determine the number of constituencies, their boundaries and those of the local government electoral units.
5. Conceptual Problems
The fifth defect of the harmonized draft offends the conception of a democratic constitution as a short statement of principles, values, and rules of a permanent or all-time charter of government. It is a very long document containing detailed provisions which ought to be contained in Acts of Parliament and policy statements. Many people cannot commit to memory its essence. A democratic constitution is designed to be easily understood by the ordinary people and ought to be short. Permanence of a democratic constitution is secured by ensuring that it is the governed/the people alone who alter it through amendments approved by them through either referenda or other ratifying institutions.
Kenya ’s constitutional experience dating back to 1964 has been one where Parliament does not recognize any limit whatsoever to its power to alter the Constitution. The Constitution has been an ephemeral document. Any seemingly small power given by Parliament to alter the Constitution like conferred by section 306(3) of the Harmonized Draft will certainly be abused and authoritarianism restored. That experience does not permit us to entrust on Parliament any power whatsoever to amend the Constitution. The solution lies in so revising section 306 as to make it clear that a referendum is required for every amendment.
The two ways of initiating amendments – through the Parliament and the popular initiative – should be retained.
6. Misconception of the Essence of Democracy
Democratic government anywhere is based on the principle of human equality and the application of one-man one-vote on the election of the popular chamber (Lower House). The phenomenon of drawing parliamentary and local government constituencies on a principle other than one-person one-vote is known as gerrymandering. One of the major causes of the failure of democracy in Kenya has been gerrymandering as observed by the Kriegler Commission. The Committee of Experts did not address the principle of one man one vote. This country like others has a problem in addressing this democracy deficit because the current Parliament is a direct product of gerrymandering and those numerous MPs who have benefitted from that phenomenon will vehemently oppose the essential reform when the Harmonized Draft comes to them for debate. Article 113 of the Harmonized Draft which provides that the independent electoral and boundaries commission should seek to achieve an approximate equality of constituency population does not give effect to this principle in the establishment of constituency boundaries and wards which will be foundations of the lower chamber and upper (senate ) chambers of parliament despite –
(a) the interpretation by our courts of the analogous provision in section 42 of the current Constitution in Michuki –v- A.G. (2003) EACA, 158; and
(b) Article 21 of the Universal Declaration of Human Rights which provides that the will of the people shall be the basis of the authority of government and shall be expressed by universal and equal suffrage.
The experience of USA has shown that the vested interests of members of Parliament requiring retention of the lopsided constituency boundaries are a stumbling block when it is sought to apply the one-person one-vote principle. It is the Supreme Court which ended gerrymandering. The solution lies in two things, namely –
(i) requiring that the principle of one-person one-vote be written into both section 113 of the Harmonized Draft and in the Bill of Rights;
(ii) requiring that the boundaries of constituencies and counties be determined by a legitimate institution before the new constitution is implemented.
Further the electoral units on which a democratic constitution is based must be agreed at the time the constitution comes into existence. The country has not agreed on either the constituency or local government electoral units. This principle was applied before the 1963 independence Constitution was implemented. After the 1962 agreement on the structure of the Constitution, a commission which drew the constituency boundaries of the popular chamber and 40 districts each of which had to elect one senator were delimited along with the boundaries of regions which subsequently became provinces. The Committee has wrongly assumed that 94 districts which have been created in the past by the executive arm of the government arbitrarily should be a foundation of the upper house.
The CoE has acted inconsistently. First, it is proposing to found regional governments on the regional boundaries as set out in 1963 Constitution and not recommending that county governments be founded on the 40 districts which were defined in the 1963 Constitution. Secondly, the Committee has made a political judgment in support of gerrymandering. The creation of districts over and above the original 40 has always been controversial. The Committee of Experts has glossed over this controversy and recognised some districts without taking cognisance of the current situation where we have 254 districts.
7. The HDC is not based on known democratic theory of the Executive Arm of Government.
The harmonized draft is not based on any known democratic form of the executive arm of the government. There are only two known forms of the executive arm of government. The first one is the American Presidential system in which the executive power of the government is vested in the president elected on the basis of one man one vote. He is the head of both the state and government and appoints cabinet outside Parliament.
The second form of democratic executive is the parliamentary system in which the Prime Minister holds the executive power and there is a ceremonial head of state. The Prime Minister is chosen or elected by the political party which has a majority of seats in the popular chamber of the parliament. The members of parliament themselves are elected on the basis of one person one vote. The Prime Minister appoints ministers from the elected members of Parliament.
The separation of powers is not complete in the parliamentary system that cabinet ministers who are members of the legislature serve in two arms of government namely the executive and the legislature.
In chapter 12 of the HDC, the executive arm of the government is based on a combination of three models, namely, USA presidential system, the parliamentary system and the third world authoritarian presidential system.
The Committee of Experts in Chapter 12 should have recommended either the American presidential system or the parliamentary system. In view of the fact that Kenya has lived under a presidential system, it ought to have been obvious that the American Presidential System is the one that would serve the country well as it entails reforming radically a system that we are familiar with.
The solution therefore lies in so amending the entire Harmonized Draft to give effect to a presidential system of government.
8. The HDC creates an Ethnic Federal State in the name of Devolution
Under the existing Constitution Kenya is a unitary state in which sovereignty ultimately vests with Parliament. In a federal state sovereignty is divided between a national government and regional or sub-national government. Secondly the powers of government are constitutionally allocated between these two levels of government each of which possesses some autonomy from the other.
Under Section 4 of the Review Act, the CoE is inter-alia mandated to review the existing Constitution to secure provision for devolution of state power. Strictly speaking devolution should not result in conversion of Kenya from a unitary to a federal state which is precisely what the HDC does. Article 5 and 6 of the HDC divides Kenya into eight regions and 74 countries vested with sovereign power and for which the Senate is established to secure their interests. Thus in the name of devolution Kenya is being quietly converted into a three-tiered federal state founded on ethnic considerations. We are convinced that the HDC has excluded its mandate because devolution should not result in the sharing or division of sovereign power between the national government and the devolved government which is really what federalism is all about.
The devolved government should only be on the county government based on units determined solely on considerations of population and economy by a legitimate institution. The resurrection of the regional governments which were abolished in 1965, is unwise and uneconomical. Whatever devolved government or devolved governments are agreed upon, be they regional or county should be established gradually through ordinary legislation. The HDC should not replace the present provincial administration immediately. The second reason why the regional government must be rejected is that it cannot be divorced from ethnicity because regional boundaries are based on the 1963 regional boundaries which in turn were based on ethnic basis because of the fear that some ethnic groups might dominate others. What Kenyans need today are the national government and a county government established on the principles of human equality and economic viability.
Further the HDC seeks to entrench tribalism using the euphemism of “communities” to establish an ethnic federal state in the name of devolving the powers of the existing unitary state. In articles 36 and 45, the Committee seeks to protect the values of human equality and human dignity. This protection would demand that tribalism be not entrenched as the HDC does in the many re-ferences to communities whose interests are to be protected. Following the fall of apartheid and the ethnic cleansing witnessed in Kenya since 1991, it is unbelievable that any person would want to entrench tribalism in our Constitution.
In view of the foregoing and upon reading, reflecting, broad consultations and debate among the rank and file of our party we are generally in support of the HDC subject to specific fundamental changes, clarifications and recommendations set out below.
II. THE BILL OF RIGHTS
The Bill is commendable for being as comprehensive as possible but in the fullness of time its ambition at satisfying everybody could well make it a toothless bulldog. It bears emphasis that the essence of rights lies in the protection that they avail the holder. The right to liberty and protection of law are only important as constitutional rights if they restrain the government from taking away liberty or enjoins it to follow due process in limiting such right. On the other hand the rights of the youth, children, older members of society and the rights relating to labour relations, social security, health, education, housing, food and water are all legitimate categories and interests that both society and government should strive to secure but little is achieved by simply enumerating them as constitutional rights on the same plane as the rights to assemble, fair hearing, property and freedoms of expression, association and conscience et cetera.
In a liberal democracy rights and freedoms help to limit state power and so there is a contradiction when a Bill of Rights consists of obligations of government and social aspirations. We recommend the reduction of the Bill of Rights to the critical minimum that will positively help to secure limited and accountable government so as to let ideological and social matters remain in the domain of statutory law. As example, consumer rights and children rights are already the subject of statutes and so entrenching them as constitutional rights serves no useful purpose and only helps to make the HDC unduly bulky and general.
Specifically, Chapter Six should be amended to achieve the following:-
1. Provide for directive principles of state policy relating to the duties of the State towards various categories of people in Kenya and towards realization of certain values or interests including right to work, education, food, water and other matters that make life comfortable and worthy living.
2. Provide for abolition of the death penalty.
3. Article 73 should provide that the right to fair hearing incorporates the jurisdiction of the courts to determine all judicial matters including whether or not to give bond to accused persons charged with any offence and to pass any relevant penalty or sentence. Minimum and maximum sentences should be outlawed.
4. Article 74 should provide that every person charged with any offence must be taken to court within 24 hours.
5. The right to life and the right to equality under sections 35 and 36 respectively should be included in the category of rights under Article 34 that may not be limited.
III. LAND AND PROPERTY
The following matters should be reconsidered and changes effected as suggested below.
a) Articles 79 should be amended so as to vest all public land in the National Government.
b) Article 80(1) should be amended by deleting it and inserting the following provision.
1. Community land shall vest in and be held in trust by county government for communities resident in a given county.
We are of the considered view that vesting property rights on the basis of ethnicity and culture will only entrench tribalism and increase tensions in areas where many communities live together as the various ethnic groups will try to assert superiority over each other.
c) There is no need for the National Land Commission established under Article 84. Given that the Constitution has already vested various categories of land in either the National or County governments on the one hand and private persons on the other hand, the provision for a National Land Commission to administer land on behalf of the said governments is superfluous and likely to lead to conflict between elected leaders and bureaucrats. Whatever our history shows, it is important to note that too much distrust of government is adverse to the best interest of society. Accordingly land must vest in either the National Government or devolved Government and the same be administered as may be provided by relevant statute to ensure equity, accountability and due process in land allocation and management.
IV. REPRESENTATION OF THE PEOPLE AND THE LEGISLATURE
Ideally Chapter Ten which deals with representation of the people and Chapter Eleven which deals with the Legislature should constitute one chapter because they basically deal with the same matters the splitting of which makes it hard to discern the basic principles of representative democracy recommended by the Committee. Be that as it may, we propose the following in respect of the two chapters.
a) Article 103 (1) (a) provides for enactment by Parliament of legislation to provide for delimitation by the Independent Boundaries Committee of electoral units for election of members of National Assembly and county assemblies. This clause literally gives Parliament a blank cheque to continue the practice of gerrymandering which is one of the prime reasons why the current Constitution is sought to be replaced. It is therefore incumbent upon the COE to amend section 103 (1) so as to provide that the basic formula for delimitation of constituencies. For instance Kriegler Commission recommended that deviation between constituencies should be between 5% and 20% of registered voters. Further the Constitution of India (1992 version) specifically states the composition of the Parliament. On composition of the House of the People it provides:.
81. Composition of the House of the People –
(1) Subject to the provisions of Article 331 the House of the People shall consist of-
(a) not more than five hundred and thirty members chosen by direct election from territorial constituencies in the States; and
(b) not more than twenty members to represent the Union territories, chosen in such manner as Parliament may by law provide.
(2) For purposes of sub-clause (a) of clause (1)-
(a) there shall be allotted to each State a number of seats in the House of the People in such manner that the ratio between that number and the population of the State is, so far as practicable, the same for all states; and
(b) each State shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and number of seats allotted to it, so far as practicable, the same throughout the State.
b) Article 113 (1) and (2) should be amended so as to:
(i) Stipulate the number of electoral units for purposes of the general election after the promulgation of this Constitution shall be determined by the IEBC in accordance with the provisions of the new Constitution.
(ii) Unless and until the IEBC has completed the review of electoral units the next general election shall not be held but the proposed Commission must in any event complete its work not later than 31st July, 2011.
(iii) Subsequent reviews of the new boundaries shall not take effect unless the same is completed within eighteen months to the date of elections.
(c) There should be a proviso to Article 113 (3) providing that in determining the boundaries of the constituencies the Commission is bound by the deviation formula provided for in the Constitution in order to ensure the equality of voters.
(d) Part 3 of Chapter Ten which deals with Political Parties is too general and focused on matters that belong to statute law. The same can be safely deleted and the CoE should consider providing for an equivalent of Article 21of the Germany Constitution which provides as follows;
“ 21. 1(1) The political parties participates in the forming of the political will of the people. They may be freely established. Their internal organization must conform to democratic principles. They have to publicly account for the sources and use of their funds and for their assets.
(2) Parties which, by reason of their aims or the behavior of their adherents, seek to impair or abolish the free democratic basic order to endanger the existence of the Federal Republic of German are unconstitutional. The Federal Constitution Court decides on the question on unconstitutionally.
(3) Details are regulated by federal statutes.
(e) It is important for the COE to determine the form of government it seeks to establish under the Constitution- whether federal or unitary form of government – because strictly speaking devolution within the framework of a unitary State does not compel the establishment of a second Chamber of Parliament. In the event that the overall desire of Kenyan people is to devolve state power within the framework of a Unitary state then the Senate will amount to surplus requirement and its existence will be an unnecessary expense and clog on legislative process.
Supposing that the CoE is in favour of a Federal form of government, it will help for it to ensure that the composition of the Senate is democratic because after all the new Constitution seeks to safeguard constitutional democracy in Kenya . In this regard it bears noting that Article 51 of the Germany Constitution provides for the following composition of the Senate:
“Article 51. (Composition)
(1) The Senate consists of members of the State government which appoint and recall them. Other members of such governments may act as substitutes.
(2) Each State has at least three votes; States with more than two million inhabitants have four, Stats with more than six million inhabitants five and States with more than seven million inhabitants six votes.
(3) Each State may delegate as many members as it has votes. The votes of each State may be cast only as block vote and only by members present or their substitutes.
Similarly Article 125 of the HDC should be amended so as to specify the composition of the Senate to represent federal states to be established if and when the CoE expressly decides that Kenya should change from a unitary to a federal form of government.
f) Article 126 of the HDC should be completely deleted and replaced by provisions upholding democracy and equality of voters and gender inclusivity as the criteria for determining the composition of the National Assembly. The obligations to ensure representation of sectoral interests should be left to parties themselves in accordance with national legislation.
V. THE EXECUTIVE
One of the principal objectives of the Constitutional review process is to establish a fair and democratic system of government with adequate checks and balances between the various state organs including the Executive, the Legislature and the Judiciary. Kenya attained independence under a Parliamentary System of government which was quickly converted into the Africa Presidential System of government which is a peculiar hybrid system bearing some aspects of the Washington System (Parliamentary) and American Presidential System but with weakened legal checks and balances on the exercise of state power.
The effect of the weak checks and balances was that the African Presidential system tends towards dictatorship and authoritarianism especially where the state became one-party dominated or by law. In many African states, including Kenya , the major legacy of the African Presidential system is that it has led to popular association of the Presidential system with dictatorship despite the glaring fact that hardly any African system has ever embraced the American-type Presidential System. In contemporary Kenya , the syndrome of the imperial Presidency is the fulcrum around which the Knee-jerk rejection of the Presidential system turns despite the fact that the idea of popular election of the country’s Chief Executive remains popular across the country.
This background is necessary because whereas the HDC predominantly embodies futures of a parliamentary system of government, it contains critical characteristics of the presidential system such as direct election of the President and his Deputy with the result that the HDC, like the existing Constitution, is a peculiar hybrid system with weak checks and balances as explained shortly below.
From the onset, we can say which certitude that the HDC resembles the existing Constitution more than it resembles either the Bomas or Referendum drafts. As regards the provisions on the Executive and system of government the only difference between the existing Constitution and the HDC is that whilst the former errs towards Presidential domination the latter errs towards an authoritarian premiership. Strictly speaking neither in presidential-dominant hybrid system nor the parliamentary dominant system is genuinely democratic and accountable as both of them bear sufficient loopholes to create dictatorship on account of weak checks and balances. In practical terms the evils of the hybrid system are not easy to discern until one understands the attributes of the Constitutional Parliamentary system and Constitutional Presidential System and the essential differences between the two. Accordingly the said attributes and differences are set out below:-
1. Attributes of a Constitutional Parliamentary Systems
a) The head of State is ceremonial and is nominated by Parliament (not elected by the people)
b) The Head of Government is the Prime Minister and he/she is nominated by its Political Party (normally whichever has majority in Parliament).
c) The public do not directly elect their Head of Government and Head of State.
d) Prime Minster does not have limited term to be in office. He/she can be nominated to serve as many terms as his/her political party wishes. (If one Political Party continues to have majority in Parliament after every election).
e) Cabinet Ministers are all members of Parliament nominated to Cabinet by Prime Minister and must be from his political party.
f) In summary in a Parliamentary System people do not elect their government officials (the executive) directly.
2. Attributes of a Constitutional Presidential System
a) The President is elected directly by the people on the basis of majority votes ie 50% plus one vote and he becomes the head of Government and State.
b) The President has a fixed number of terms to serve normally a maximum of two, five or four year term.
c) The President is not a member of Parliament.
d) Cabinet is nominated from outside Parliament (with approval of Parliament).
e) No Member of Parliament can serve as an executive of Government either in the cabinet or any government offices or positions.
f) In a Presidential System the executive shares powers with legislature (Parliament) in that:-
i) All the appointments in the executive offices including constitutional offices, the cabinet, Judicial officers, heads of government institutions including PSs and the ambassadors are made by the President and each must be screened and be approved by Parliament before taking office. If the appointed officer is rejected by Parliament the President is required to appoint another of his/her choice and present him/her to parliament. This is a basic requirement in a Presidential system to complete the checks and the balances of power. This attribute in a Presidential system does not exist in a Parliamentary system, a major weakness in that system.
ii) The President and the parliament cannot dismiss or dissolve each other but parliament can impeach a president by a two third majority vote. Parliament constitutes itself into a court and tries the President if found to have violated the constitution ands if found guilt, he is impeached.
3. The major difference between the Parliamentary and Presidential systems are;
a) In a Parliamentary System the separation of Powers between the Executive and legislature does not exist as such since the Prime Minister and the Cabinet are all Members of Parliament. This way Parliament cannot fully check on the executive. In a Presidential System, there is clear separation of Powers between the Executive and Legislature because both the President and his Cabinet and all other major Government Institutional officers are not members of Parliament. This way Parliament can fully check on the Executive, and the President (or the executive) cannot control Parliament in any way.
b) In a Parliamentary System the Chief Executive of the country is not elected directly by the people, in other words the Chief Executive is not elected by popular votes.
The Executive is answerable to Parliament and not the people. In a Presidential System the Executive is elected by popular votes and is answerable to the people directly.
c) Presidential system was created to cure some weakness in a Parliamentary System particularly in regard to
1. Separation of Powers and the issues as to whom the Chief Executive and members of parliament are answerable to.
2. In Parliamentary System, the Chief Executive is answerable to Parliament while in a Presidential system the Chief Executive is answerable to the people.
3. The absence of these two aspects C1 and C2 above in a Parliamentary Systems makes it not be fully democratic.
Chapter twelve of the HDC provides for a split executive purportedly sharing out executive power between the State President and the Prime Minister. Whereas Articles 155 and 156 purport to lay down the principles of Executive authority and structure of the national Executive in reality they are superfluous platitudes without any legal significance.
The said articles provide:-
155. (1) Executive authority derives from this Constitution.
(2) It is to be exercised –
(a) in a manner compatible with the principle of service to the people and the communities of Kenya ; and
(b) For their well –being and benefit.
(4) The composition of the national executive shall reflect the regional and ethnic diversity of the people of Kenya .
The National Executive
156. (1) The National Executive authority of the Republic shall be exercised in accordance with this Constitution by, or on the authority of, the State President and the Prime Minister together with the rest of the Cabinet.
(2) The State President shall exercise the powers and perform the functions of that office on the advice of the Cabinet unless this Constitution states otherwise.
The Constitution is the source of all government authority and power must be exercised to the best interest of the people in accordance with the law and judgement of those elected to those offices. The composition of the National Executive is the result of elections and sometimes it may reflect diversity and sometimes it may not. Moreover, Article 156 is superfluous for pretending to vest executive authority in the State President and the Prime Minister and avoiding to spell out who is the country’s Chief Executive.
In a State with a divided executive it is always important for the Constitution to set out the hierarchy of the National Executive as in France where the President is the ultimate CEO. If for whatever reasons majority of Kenyans want the Prime Minister to be the Chief Executive it will help to state that categorically in order to spare the country the expenses of electing president who becomes ceremonial as soon as he or she invites one of the leaders of the major parties to form and run government.
It bears emphasis that the central role of elections is to determine how and who should govern or the right to form and run government. Under Parliamentary System of government elections determines which party or coalition of parties will form and run government and so the parties are the real candidates Under a Presidential system elections determine the person who will form and run government and so the individuals nominated by their parties or independently are the candidates.
Under Article 179 of the HDC the right to form and run government is vested in a Prime Minister who by dint of Article 180 1(a) will be a member of the National Assembly who is the leader of the largest political party or coalition of parties, represented in the National Assembly.
Under Article 180 1 (b) the Prime Minister will be the leader of the second largest political party or coalition of parties in the event that the leader of the largest party or coalition of parties is unable to command the confidence of the National Assembly. Besides the fact that Article 180(1) does not state how to determine whether the leader of the largest political party or coalition of parties may command or fail to command the confidence of the National Assembly it is clear that the right to form and run government vests in a person who was not a candidate in the preceding general election.
In this critical sense, therefore, Chapter 12 of the HDC by one fell stroke of the pen negates the utility of elections in a democracy namely determination of the right to form and run government. On this account alone the HDC does not achieve the objective of securing a democratic system of government with adequate checks and balances.
In view of the foregoing we recommend the following:-
a) Article 155 of the Constitution should be amended so as to expressly provide for the system of government sought to be created i.e. presidential, parliamentary or a hybrid system. Upon the said decision being made then the principles of the adopted system should be expressly set out to enable Kenyans to determine whether it provides for accountable government and effective checks and balances. The existing Article 155 is too general to deserve description as principles.
b) Section 156 should be amended depending on the system of government that will be adopted:-
i. If presidential system is adopted then executive authority should vest in the President.
ii. If a parliamentary system is adopted – such as in India – then the executive authority should vest in the President as head of state. For instance Article 53 of the Constitution of India provides as follows:-
53. Executive power of the Union-
(1) The executive power on the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.
(2) Without prejudice to the generality of the forgoing provision, the supreme command of the Defence Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law.
(3) Nothing in this article shall-
(a) be deemed to transfer to the President any functions conferred by nay existing law on the Government of any State or other authority; or
(b) prevent Parliament from conferring by law functions on authorities other than the President.
iii. If a hybrid system is adopted then the Executive power should vest in the person directly elected as head of State (if based on French model) or on the person designated as head of state if the model under the existing Constitution is retained.
It is our considered view that the executive authority of the state cannot be validly vested in the Prime Minister and Cabinet for the simple reason that the holders of such positions are simply members of the government in power which in a liberal democracy is constituted by a temporary electoral majority. Moreover, strictly speaking the office of Prime Minister as head of government and cabinet are simply governmental offices as opposed to state offices but this distinction seems lost to the CoE throughout the HDC.
c) The entire Part 2 of Chapter Twelve which deals with the State President and Deputy State President should be replaced entirely after the CoE has determined the country’s political system. The HDC for the most party provides for a parliamentary system and so the CoE – if it has chosen that system – must have the courage of conviction and remove the requirement for direct election of a president and his deputy who in the end will not form and run government.
d) Paragraph 3 of Chapter 12 of the HDC which deals with the Prime Minister and the Cabinet will similarly have to be replaced with appropriate provisions after the CoE is clear in its mind about the precise political system it is recommending for Kenya . The current HDC, it bears emphasis, is a replica of the existing Constitution save for the fact that the Prime Minister replaces the president as the new autocrat in town.
It bears emphasis that whenever Kenyans bemoan the legacy of dictatorship in Kenya , they have in mind the concentration of executive power in the office of the President that resulted in subjugation of Parliament and the Judiciary by the executive arm and led to unaccountable and arbitrary exercise of state power. The HDC transfers the powers to form and run government to the Prime Minister and the Cabinet but having done so, it retains the President as the object of checks and balances rather than the prime Minister who becomes the Chief Executive as soon as the President has been elected by a majority of 50% plus one of all the valid votes cast including 25% in at least five of the eight regions! As Article 158 correctly states the role of the president in the affairs of government is merely to be informed fully and regularly by the Prime Minister on the conduct of government. To call a spade a spade rather than a big spoon the Prime Minister shall:
i) form and run government –which he or she heads;
ii) direct and coordinate the work of the ministries and the preparation of legislation;
iii) preside at cabinet meetings;
iv) appoint the Deputy Prime Minister from among the elected members of the National Assembly;
v) appoint ministers and deputy ministers;
vi) may appoint up to ten ministers who are not members of the National Assembly;
vii) dismisses the Deputy Prime Minister, Cabinet Minister or Deputy Minister;
viii) must sign a decision of the Cabinet for it to be valid;
ix) assign functions for the Deputy Prime Minister, Cabinet Ministers and Deputy Ministers;
x) may transfer the responsibility for the implementation and administration of any Act of Parliament from one member of the Cabinet to another.
xi) may invite any person to a Cabinet meeting if in his opinion a matter arise or may arise at the meeting that requires the attendance and participation of that person;
xii) advises the president who to appoint as secretary to the Cabinet and on dismissal of that person;
xiii) advises the president on dismissal of the Principal Secretaries;
xiv) advises the President through the Cabinet on the exercise of powers and performances of the functions of the President;
xv) be a member of the National Security Council (consisting of a majority of persons he has appointed) and may occasionally chair it.
In performing these critical functions there are no effective checks and balances on the Prime Minister because the HDC either disguises them as functions of the President, the Cabinet or presents them as mere administrative functions necessary to ensure that the imperial President will not ever threaten Kenya again. Having made the tragic assumptions that only the Imperial President can abuse State power or compromise public interest the COE focuses the checks and balances on the President even after it has successfully converted the same into a ceremonial position for a president who will occasionally inspect guard of honours and sign documents bearing decisions and actions of the Prime Minister, the Cabinet, the National Assembly and other office holders under the Constitution. Whichever way we look at it reason dictated that the office of the President be removed from the Constitution or at least save Kenyans the expense of having to elect a ceremonial leader directly.