New government structure heralds stable future of power

On January 9, 2023, shortly after a Cabinet retreat, President William Ruto issued Executive Order No. 1 of 2023 that defined the future of power and its structure. Seemingly, the presidential order is a conscious and strategic response to a ‘state of anarchy’ that marred the first decade — perhaps the most anarchic in recent memory — after the promulgation of the 2010 Constitution.

If the famous Sessional Paper No. 10 of 1965 on African Socialism and its Application to Planning in Kenya defined Kenya’s brand of ‘market socialism’, the January 2023 Executive Order is a quest for the stability of the country’s nascent liberal democracy to underpin development. In this regard, the presidential order is a strategy to rescue the gains of reforms under what has been theorised as ‘Kenya’s quiet revolution’.

Globally, the term ‘Quiet revolution’ was popularised by the intense liberal reforms in the French-speaking parts of Canada from the 1960s. It Kenya, it is about liberal reforms that culminated in the 2010 Constitution, one of the world’s most liberal.

Linked to the ‘Quiet revolution’ in Kenya is the quest for political stability as a sine qua non for long-term planning, development and poverty eradication. But stability remains elusive. Tragically, the defeat of the government-backed constitutional referendum in November 2005 set the country on the perilous path to the 2008 post-election violence.

But the ‘Serena peace process’ calmed the nation, culminating in the National Accord and Reconciliation Act (2008) and the formation of the ‘Nusu Mkate’ (power-sharing) government.

‘Quiet revolution’

The fate of Kenya’s ‘Quiet revolution’ has been tied to a 27-member Parliamentary Select Committee on the Review of the Constitution that midwifed the rebirth of Kenya in the 21st century.

In January 2010 in the resort city of Naivasha, the committee adopted the report, popularly known as the ‘Naivasha Consensus’, which set the stage for the enactment of a new constitution.

The mantle of implementing the 2010 Constitution fell on some of the members of the committee. Two of the committee’s members — Uhuru Kenyatta and William Ruto— became the fourth and fifth Presidents of Kenya. And three members of the committee—Moses Wetang’ula, Musalia Mudavadi and Ababu Namwamba— together with Justin Muturi (who was a senior member of the government’s think tank that supported the committee) are at the helm of Dr Ruto’s government.

‘Themidor’ moment

In a sense, the new structure of government is a strategic response to the ‘Thermidor’ moment in Kenya’s ‘Quiet revolution’. The term ‘Thermidor’—a moment in the French Revolution when the radical Maximillien Robespierre and his loyalists were overthrown—has come to refer to a retreat from more radical goals and strategies during a revolution.

What bedevilled Kenya’s ‘Quiet revolution’ is the failure by the Jubilee administration of Mr Kenyatta after it won power in 2013 to develop a nuanced strategic counter to the destabilising effects of the doctrine of “Separation of powers” as the philosophical basis of the 2010 Constitution. Popularised by the 18th Century French philosopher, Baron Montesquieu, the doctrine of separation of powers divides the legislative, executive and judicial functions of government among three separate and independent bodies.

The architects the Constitution embraced the trias politica model as the best antidote for the Kanu-era authoritarianism because it is intended to limit the possibility of arbitrary excesses by government and to prevent the concentration of power by providing checks and balances.

Jubilee’s liberal enthusiasts, however, forgot that a government that dogmatically crusades for the separation of powers imperils its unity, harmony, stability and efficiency. Montesquieu had confused ‘power’ with ‘functions’. Accent should be on ‘separation of functions’ not ‘separation of powers’. A functioning government is by its very nature an organic unity. As the English philosopher, John Stuart Mill, noted, complete separation and independence of the various organs of the government would result in frequent deadlocks and general inefficiency.

As such, efforts to ensure the complete separation and independence of the various arms of government wreaked havoc on the Jubilee administration. ‘Mere anarchy was loosed on the nation’, to paraphrase William B. Yeats’s poem, ‘The Second Coming’.

 Within the executive, supremacy battles rocked departments and ministries, security arms, the President and his deputy. It never helped matters that an informal powersharing (handshake) between the President and the opposition chief, Raila Odinga, in March 2018 polarised the executive and the entire body politic.

Assertive Judiciary

The clash between the executive and an increasingly assertive Judiciary had gone public. Tensions reached a fever-pitch when the Supreme Court nullified Kenyatta’s election victory in 2017. Subsequently, the President turned down the nomination of six judges to the Court of Appeal and the Environment and Lands Court. Frequent supremacy tiffs were also witnessed between the National Assembly and Senate. And Parliament locked horns with the Judiciary.

More than 100 days after coming to power, the writing was on the wall that William Ruto’s Kenya Kwanza administration was also hurtling down the same road of deadlocks, disharmony, disunity and inefficiency. The Executive Order detailing the structure of government came to reverse this trend. As a strategy, it stresses the unity, harmony and efficiency of the government as an organic unit, redefines the future of an orderly exercise of power without amending the Constitution and addresses supremacy battles at the helm of government.

Over and above deputising the president, chairing Cabinet committees, overseeing the implementation of decisions passed by Cabinet, chairing the Intergovernmental Budget and Economic Council (IEBC) and coordinating various committees, the Deputy President has to manage the pivotal relations between the national government and devolved units.

The new structure placed the new office of Prime Cabinet Secretary under the Executive Office of the President. Besides assisting the President and his deputy, the office is also tasked with supervising ministries and state departments, and coordinating the government legislative agenda, thus creating the necessary nexus between the executive and legislative arms of government.

Lastly, to end the perennial tensions that rocked the Executive and the Judiciary, Attorney-General Justin Muturi is tasked with managing the nexus between the two arms and ensuring that any legal issues limiting government operations are addressed.

While the new structure of government potentially tames Montesquieu’s demons, it is imperative to guard against a top-heavy bureaucracy that might add to the cost of governing in the context of Kenya’s heavy debt burden, limited budget and unlimited demands by the hustlers.

Prof Kagwanja is a former Government Adviser, now Chief Executive at the Africa Policy Institute (API) and Adjunct Scholar at the University of Nairobi and the National Defence University (NDU), Kenya.