Expanded executive will relieve post-election woes

My compatriots, I write this Open Letter to you in my capacity as a scholar of the law, the state, and constitutionalism. I want you to hear me. Democracy is an experiment, a project that at its best seeks a higher and ethical human intelligence.

No one who for decades has been a keen student of human societies, including Kenya, can claim to have a glimpse of eternity, a final resting place on the summit of history.

All we can do is to think and argue together in good faith if we hope to give our people the best chance of realising their human potential. It is in this regard that I opine on the BBI report – Building Bridges to a united Kenya: From a nation of blood ties to a nation of ideals. I want you to think with me about Kenya as an idea, not just as a geographic location on the planet, or a ramshackle collection of disparate peoples.

No constitution is perfect. Even the national charters of the most advanced democracies are deeply flawed. The American constitution, arguably one of the world’s most enduring constitutions, has been amended 27 times. The United States is 244 years old and we can all plainly see the serious problems convulsing it even with one of the longest histories with constitutional political democracy.

In contrast, Kenya is only 56 years old. Unfortunately for Kenya, our elites selfishly and maliciously amended the country’s 1963 independence constitution to aggrandize their power and oppress citizens. I cannot think of a single justifiable amendment, except the one in 1964 to make Kenya a republic.

Healthy skepticism

That is why Kenyans have a healthy skepticism about constitutional revisions. It is why Kenyans fought so hard to gut that mutilated constitution and replace it with the 2010 constitution.

It is a fact that the 2010 constitution is one of the most progressive national charters in the world. However, it was a political compromise. Making constitutions is akin to making sausage – the process is messy and unappetising. The outcome may look good on the outside, but the devil is what is inside.

We should be honest that the 2010 constitution has many lacunae and flaws. These constitutional defects and “silences” continue to bedevil us. That is why implementing it has been so elusive and challenging. That is not the only problem. The far greater catastrophe is the inability of our elites to intellectually and culturally submit themselves to the values and tenets of liberalism on which political democracy and modern constitutionalism are built.

We have a politically immature and malignant elite. However, our people – wananchi – are also blameworthy. Generally, a people gets the government they deserve. Otherwise, they should exercise their inherent power of revolution. For reasons that are known, our people are enthralled and captured by the elites and their ethnic kingpins. They largely continue to vote for the worst among us.

Constitutions do not enforce themselves no matter how pristine, aspirational, and great. Constitutions are living documents into which the elites and the people must breathe life. For that to happen, constitutions must have basic cultural and normative legitimacy in the society in which they are planted, or they will be stillborn. That is what happened to the 1963 Constitution.

An elite that did not own it, or believe in it, killed it. Nor did the people rise up and fight to protect it. Which brings me to the 2010 constitution. It is clear to me there are parts of the 2010 Constitution that both the elite and the people do not fully own.

That is why the elite have flouted parts of it with the acquiescence of the public. We have not domiciled the 2010 constitution. We are all – every single one of us – to blame for this failure. If we must rise, we must do so together as a nation.

As they say, we must hang together, or we shall surely hang separately. We need an honest conversation about our failure to fully accept the constitution and the idea of constitutionalism, and what we can, and must, do about it as a country.

Enter BBI

I do not want to reprise here the history of BBI and how the initiative came about. That story has been told. Suffice it to note that we are here now. The rest is water under the bridge. What I know is that the so-called Handshake gave the country a reprieve and an opportunity to take stock. There are as many of our compatriots who welcomed it as have spurned it.

The schism threatens to tear the country apart because of the competing ambitions of politicians and their supporters. Let us not pour gasoline on the embers of hatred and greed for power. We must avoid this at all cost.

My plea is that no matter what side of the ledger we fall we have a civil conversation about the BBI report and either adopt, or reject, it. Life must go on whatever the outcome. Let the democratic will of the majority prevail. Not a single Kenyan life should be lost because of a politician’s ambition on whichever side.

What I like

There are many sober proposals in the BBI report and its accompanying draft bills. The proposals hew largely towards the draft of the Committee of Experts that was chopped up at Naivasha by MPs. In my view, most of the proposals are uncontroversial.

They clean up existing kinks, or fill in missing links. On this part, it is a cleanup job left over from Bomas and Naivasha. Elsewhere, some of the proposals are informed by the experience of the last decade. I focus here only on big issues. Here below is what I like.

The wisdom of the provisions to use the mixed member proportional representation to get to the two-thirds gender rule before 2022 is unarguable. I found the proposal for a 50-50 per cent gender split at the Senate very welcome.  The proposal to increase budgetary allocations to counties from 15 per cent to 35 per cent deepens devolution and should be implemented forthwith.

I am OK with the expanded executive to include a PM and two DPMs. I know this proposal has been demagogued, but my belief is that it will relieve post-election contestations among elites and communities. It is disingenuous to dismiss it because in all elections since independence Kenyans have voted along ethnic lines, or as directed by their ethnic kingpins.

 We know the disastrous consequences of this pattern of voting. We cannot by mere words wish away a reality in the zeitgeist of our people. However, I would provide for checks and balances on the president’s powers to appoint and dismiss the PM.

The president should only be able to dismiss the PM upon the approval of a simple majority of both Houses. I like the strengthening of the anti-corruption laws. However, wealth declaration by all public officials, including the president, must occur every two years and be publicly available on a website. All unexplained wealth must be seized subject to only one challenge – without appeal – in the High Court.  I like the economic breaks given to the youth.

What I do not like

I do not have a problem with a Judiciary Ombud per se, but it is plainly wrong to vest the power of his/her appointment in the President. Furthermore, the inclusion in the Judicial Service Commission of the Ombud erodes its independence and seriously compromises the independence of the judiciary because it allows the President to pack the JSC with his/her appointees.

 I like the idea of reconstituting the IEBC – and sending the current chair and commissioners packing before 2022 – but I do not like the balance of independent commissioners to those appointed by political parties. The reverse should be the case. The challenge of the IEBC is one of legitimacy and credibility. To instill confidence of the public in the IEBC, it should not be seen as a smoke-filled boardroom for political parties to make deals.

That is why independent commissioners must outnumber those nominated by political parties. I am troubled by the size of the legislature given its lack of productivity and its despoliation of public funds. If we cannot reduce the number of MPs, then I suggest we revise their emoluments and salaries by half. The same should apply to MCAs.

We need to make the legislature unattractive for people who are motivated by pecuniary reasons and not public service. I do not like the failure of the proposals to remove the stigma and discrimination of Kenyans in the diaspora. Any Kenyan by birth should not be excluded from holding any public office.

 I have no problem with citizen responsibilities, but I would like to see corresponding responsibilities for leaders. We need to make it easier to sanction a president who flouts the Constitution. The device of impeachment needs to be more readily – and easily – available.

Conclusion

Constitutional design is always a challenge even with everything we know about constitution making. The design of the 2010 was fundamentally sound but these new proposals will make it more acceptable to the elites and the people.

More importantly, the proposals may give the elite and the people more reasons to submit to it. This can only increase the legitimacy of the constitution and more firmly plant it in the Kenyan soil. It is for these reasons that I endorse the BBI report and its accompanying bills subject to the changes I have indicated.