BBI creates a dysfunctional executive, national assembly

During the process of discussing and drafting the 2010 Constitution, Kenyans seemed to have favoured a strong parliamentary system of government. However, the 2010 constitution ultimately settled for a presidential system.

This is the model where the president is the head of state and head of government and is mostly elected directly by the people. In a presidential system, the president mostly holds undivided executive power and the executive is separated from the legislature.

This contrasts with a parliamentary system where the executive is elected by parliament. Essentially, the executive powers are assigned to a member of parliament - often a prime minister – who is often the head of the party with majority of parliamentarians. The prime minister then nominates senior government officials, including members of cabinet, who are directly accountable to parliament.

Strong parliamentary system in Bomas draft

In Kenya, the Constitution of Kenya Review Commission (CKRC) and the Bomas Conference recommended a relatively strong parliamentary system. Under the Bomas draft constitution, there would be both a president and a prime minister with the former being the head of state and the latter the head of government.

In many ways, the role of the president under the Bomas draft was mostly ceremonial – performing such duties as appointing a prime minister who was voted for by parliament as well as cabinet ministers and other senior public officials, but who were nominated by the prime minister. The president was to be the symbol of national unity – that is, a leader who was seen to be above the fray of everyday politics.

Essentially the prime minister would wield executive power not the president. This would be the same proposal that the Committee of Experts (CoE) would stick to when it prepared the Harmonised Draft Constitution in 2009.

But when MPs retreated in Naivasha to look at what were dubbed contentious issues in the Harmonised Draft Constitution, the system of government took centre stage. What came to Naivasha as a parliamentary system left as a presidential system – with the executive entirely sitting outside of parliament, deleting the prime minister and relocating all the powers of that office to the president. Parliament was made fully independent of the executive with members of the cabinet drawn exclusively from outside parliament.

One core proposal that was reasonably expected from Building Bridges Initiative was that it would opt for the Bomas draft style of parliamentary system. This was partly because during the CKRC and Bomas Conference, Raila Odinga was a strong advocate for a strong parliamentary system though he later had a change of mind and supported the presidential system mooted in Naivasha.

But after the 2013 elections, he would again start touting why parliamentary system was most befitting. No wonder ODM recommended to BBI the creation of a parliamentary system with a powerful prime minister. Moreover, in September 2019, during the launch of Prof Anyang’ Nyong’o’s book “Presidential or Parliamentary Democracy in Kenya? Choices to Be Made” Raila argued strongly about a “parliamentary system where executive would be elected by MPs” because it is best-suited system to tame an imperial presidency and “best way to stop election-related violence and ethnic polarisation.”

But does BBI create a parliamentary system or replicate the Bomas draft constitution? It does not.

BBI and the mishmash system of government

What BBI proposes is not anywhere close to Bomas. Instead, it is a dysfunctional and unpalatable mishmash of a political system. Sure, under BBI we would have the positions of president, deputy president, prime minister and two deputies. And yes, BBI borrows mostly from the Bomas draft language on how the PM would be appointed, but that is where the similarities end.

Certainly, for the more critical and substantive issue on who holds executive power, BBI departs entirely from Bomas. All the executive power is with the president. In spite of the high sounding title, the prime minister would essentially be a prefect for ministers. And it should not be lost that the president can unilaterally fire the BBI’s prime minister.

But there are more problems with the BBI proposals that add to dysfunctionality. Under BBI proposals, the prime minister and the leader of opposition can be from the same party/coalition while the president and the two deputy prime ministers come from a competitor party/coalition.

This is how

BBI reserves the leader of opposition for the runner-up in the presidential election. Yet it is highly likely that the party with most seats in national assembly is the party or coalition of the leader of opposition and not the president’s. That was the case after 2007 election, where ODM had more than double the seats of President Mwai Kibaki’s Party of National Unity (PNU) in parliament.

Because the first option on who becomes prime minister is reserved for the member of parliament who is the leader of the majority party, then that party or coalition would be entitled to both the leader of opposition and the prime minister.

Perhaps BBI would answer and say it is all about inclusion. Still, I would call a constitutional option that yields, immediately after election, the prime minister and the leader of opposition from the same party as dysfunctional. In such a case, it would be interesting to know how Kenyans tell which party has formed the government and which one is the opposition.

Compounding dysfunctionality

But it could be worse. It is quite easy under BBI to have a president, the deputy president and the two deputy prime ministers drawn from the same party/coalition and the prime minister from the opposition party.

This is because, unlike Bomas where the prime minister nominated the deputies (as well as all cabinet ministers) under BBI the president nominates and appoints — without any fetter — the deputy prime ministers and all the cabinet ministers.

Then under BBI cabinet ministers — who could be selected from elected members of National Assembly or just outsiders, are members of parliament. Why this is necessary is unclear since cabinet ministers are fully accountable to the president and not the National Assembly.

During the grand coalition government we had a mild form of BBI-style government. Often it ended in tears about nusu mkeka and other endless disagreements — including who, between the president and prime minister, had power to fire which ministers – even when they were from the prime minister’s party.

My view is that BBI’s mishmash system of government promises to give you that level of dysfunctionality and more.

  @waikwawanyoike