BBI and the return of an imperial President

One critical feature of the 2010 Constitution is the principle of separation of powers. Essentially, the concept of separation of powers ensures that the three arms of government are independent though interdependent.

It also ensures that each arm has constitutional powers and mechanisms to check the other two. The overwhelming reason why the 2010 Constitution chose a strong separation of power was to correct the vices of the overbearing imperial President under the 1969 Constitution.

BBI and imperial President

On October 21, Uhuru Kenyatta and Raila Odinga unveiled the proposals to amend the Constitution made by the Building Bridges Initiative (BBI). With them is crafty and round about way to re-install an imperial president.

These include the proposal for an executive controlled police service through the proposed Kenya Police Council and the dismantling of the multi-sector membership of the Salaries and Remuneration Commission and allowing the president to choose all its members.

But – because the Nation says this piece can only be so long – I want to focus on the overbearing control BBI gives to the president on the other two arms of government: Parliament and the Judiciary.

Capture of National Assembly

Parliament is both the National Assembly and Senate. In many ways, our constitutional design is such that the National Assembly is the most consequential of the two houses. Nearly everything the Senate is allowed to do, National Assembly also has powers to do or undo them.

The inverse is not true, since there is only a handful of things that Senate can do which the National Assembly does not have a role in. If you want to capture Parliament, you target the National Assembly, not the Senate. That is the strategy of BBI. How?

The first is by introducing a prime minister, who is a nominee and appointee of the President and who also has veto on all the prime minister’s powers. But, you may want to jump in here to remind me that in fact the BBI proposal states that “a person is eligible to be nominated as the prime minister if the person is a member of the National Assembly who is the leader of the majority party or coalition of parties in the National Assembly”. 

True.  In reality, however, the President will still have overbearing control on who becomes PM. First, it is clear that one cannot be a PM until they are formally nominated and later appointed by the President. This is in a country where the President has demonstrated that he can refuse to appoint a nominee he does not like regardless of the Constitution requiring him to do so. Second, BBI adds two more variables on who may be appointed PM.

Number one – it states that the nominated person must be voted for by a majority of the members of the National Assembly. If the majority party leader does not garner the required parliamentary support, the party designates a new candidate and if approved by the majority of members, they become PM.

Still, it is the next variable on appointment of PM that is most curious. The proposal provides that if the new person designated by majority party fails to garner the necessary support from National Assembly, “the President shall appoint a member who is able to command the confidence of the National Assembly”.

Surprisingly, this last option does not require that the PM be from the majority party or be approved by the National Assembly. It essentially gives the President a freehand to pick whomever he likes. Knowing our history, it is highly likely that, if the President does not like the formal leader of majority, he will use patronage to get to option two or three whichever his true preference.

There are a few other ways that the President will effectively control Parliament but one additional illustration is apt. BBI proposes that Cabinet ministers can be selected from among members of the National Assembly. However, past experience demonstrate that presidents used the stick and carrot strategy – in exercising their appointment power to such lucrative positions – to take away individual parliamentarians independence.

To those who are already ministers – he would use the stick (the fear to be fired) and those who are not, the carrot – the perpetual hope that if one towed the president’s line the next ministerial appointment would be coming to them. Worse, BBI wants to remove the provision that gives Parliament power to approve Cabinet and principal secretaries.

What of the Judiciary?

Perhaps the two most critical elements of the independence of the judiciary is in how judges are recruited and removed. If one person has significant control on recruitment and removal of judges, it means the judges get beholden to the person, losing their individual independence and by extension that of the judiciary.

Under BBI, the control of the judiciary is through a simple introduction of the position of the Judiciary Ombudsman chosen by the President. The primary responsibility assigned to the holder is to receive and conduct inquiries into complaints against judges which are forwarded to the JSC.  If JSC is of the opinion the accusation against a judge is well-founded, it requests the President to form a tribunal that will decide whether or not the judge should be removed.

The President has a freehand in choosing all members of the tribunal. This means that the ombudsman would be the gatekeeper on which judge should be investigated. Because of this, the ombudsman would significantly affect the JSC’s decision to recommend whether a judge should face a tribunal or not.

The past is no longer past

The current control of Parliament and the near complete capture of the judiciary by the President are not based on the Constitution.

They arise from intimidation and selfish horse-trading by MPs and some judges.

But if BBI proposals on some of the critical amendments on Parliament and judiciary pass, they will have delivered a formal constitutional capture of all arms of government by and created a totalitarian president.