The long-awaited Building Bridges Initiative Report (BBI report) was launched on June 26, 2020 amid much fanfare. The report contains recommendations that could alter Kenya’s governance structure to a great extent.
Proposed changes include the adoption of a hybrid presidential-parliamentary system under which an elected President appoints a Prime Minister from among members of the majority party in the National Assembly and two Deputy Prime Ministers and ministers from within the membership of the National Assembly. It also creates a formal Leader of Opposition position for the runner-up in a presidential election.
The report also calls for the introduction of a judicial ombudsman appointed by the President; the replacement of the National Police Service by the Kenya Police Council; and an expansion of Presidential powers such as in the appointment of all members of the Salary Review Commission, and his appointment of Cabinet Ministers without the input of the National Assembly among others.
It also proposes to increase the resources to the counties from the current 15 per cent to at least 35 per cent of the last audited accounts; create a County Ward Development Fund to be governed by statute; and the embedding monitoring, implementation, and impact assessment of Article 43 rights in the President's State of the Nation address and in the budgeting process.
The report finds a solution for the gender parity question through a proposed expansion of the Senate to include 94 senators –– with each county voting for one man and one woman as Senators. In the National Assembly, the report calls for single and multiple representation where 290 MPs will be elected on first-past-the-post basis and an additional 63 seats will be allocated based on actual votes cast per county, thereby increasing National Assembly members to 353.
Many an analyst have dissected the BBI’s proposals. Professor Makau Mutua looks upon it favourably for the most part. Waikwa Wanyoike not so much as seen from his two-part analytical series on the report. We have previously analysed the BBI as a whole in two parts: One, as an object of curiosity for a nation coming to terms with it and second, in the context of this country’s elites’ fractured history.
At a glance, the report reads like the executive’s mission creep to increase its clinch hold on power vis-à-vis the other arms of government. And while justification has been made in many quarters for this development, the history of this country — the ravages of an arbitrary and unconstrained executive— intellectually assails most of us making the proposal instil fear rather than hope. It is actually the re-Africanisation of the presidency.
What is the role of the citizen in this? While we are inundated with reviews of the report itself and of the proposed constitutional amendments, what is required of us and why? The sole purpose of this article is to make it clear that our participation in governance and in this process is nonbargainable.
Weiler and the Hungarian Problem
Professor Joseph Weiler is scholar and teacher extraordinaire, currently serving as the European Union Jean Monnet Chair at New York University Law School and Senior Fellow of the Minda de Gunzburg Center for European Studies, Harvard.
Weiler’s work is almost an hommage to Willam of Ockham; the Fransiscan theologian and philosopher who lived during the late 13th to mid 14th century and from whom we get the Occam’s razor principle — the simplest solution is always the best. It would therefore come a surprise to no one that in Weiler’s analysis of the situation in Hungary in August, he succinctly identified a problem beyond law.
Since Viktor Orban, Hungary’s Prime Minister, took over power in spring 2010, he has implemented a programme aimed at the reconstruction of the state institutions. The political reforms reached their peak in the new Hungarian Constitution that took effect on 1 January 2012.
Now almost eight years later, Mr. Orban has remade Hungary’s political system into what one critic calls “a new thing under the sun.” Once known by watchdog groups as a leading democracy of post-Soviet Eastern Europe, Hungary is now considered a democracy in sharp, worrisome decline.
He first curtailed Hungarian media through a highly controversial media law that controlled what could be reported. He then curbed the judiciary’s independence through introduction of a law that had his party, Fidesz, choose judges of the Constitutional Court. Furthermore, he deliberately chose strategy that chipped away at the country’s checks and balances; expanding his power and instilling a culture of political tokenism.
Naturally, most observers were focussed and furious at Orban for creating what is termed “an illiberal democracy”. However, Weiler was not fooled. He argues that in focusing on the personality of the “vile Viktor Orban” with “dictatorial” tendencies, we fall into the trap that reflects a widespread malaise in our general democratic discourse of “deresponsibilising the People, the nation, the electorate.”
Weiler finds that democratic discourse today shies away from inculpating “the People” – not those in power. We think of them as deserving of rights and benefits, and all other good things but not as responsible actors. This way, we view them as passive receivers of governance and politics; objects of power, to whom things are done.
Hungarians overwhelmingly voted and continue to vote in Fidesz and Orban. That we even judged their democracy as “illiberal” is to Weiler, evidence of our inability to understand democracy in the first place. The fact that a choice is democratic does not necessarily make it “good”.
Weiler explains that a democracy of evil people will be an evil democracy. A democracy of (socially) unjust or uncaring or indecent people will be a socially unjust, uncaring and indecent democracy. And the collective desire for a tyrant yields tyranny.
Weiler was unequivocal: Hungary’s problem was an act of collective democratic self-asphyxiation of willed action, which could have been stopped at the ballot box. In essence, Hungarians were wilfully and voluntarily self-sabotaging certain gains.
It might be said that Weiler’s argument is limited to countries where the free will of the people is guaranteed. One could argue that in African countries, the information and deliberative processes have been subverted and the composition of government cannot be said to be a more or less accurate and true reflection of the popular will. Therefore, African ‘People’ might not really be responsible for their weak governance and democratic structures.
But to dismiss Weiler that way is to dismiss the promise of most of Africa’s new age constitutions which have designed systems requiring from us, collective responsibility. Constitutional supremacy, written in our 2010 Constitution, obviates the problem of arbitrary power that defined the African neo-patrimonial state of yore. Every single governance question becomes a constitutional question.
Power exercised in resolving as an example, the debt question; the issue of revenue sharing allocation, the appointment and termination of judges; the judiciary’s budget; the character of public servants; and the nature of our police service among others, is constitutionally demarcated. But these constitutions are only documents, however much we may wish they were more. They cannot enforce themselves but empower us, the people.
Each proposed provision in the BBI report is to be examined in this lens. Are we honouring the spirit of the Constitution to limit the excesses of power; regardless of who wields it? Are we cognizant of the history that led to the current constitutional dispensation and if so, are the proposed changes respectful of that history? It is only then, that we vote.
Our constitutional democracy, and the rule of law institutions our Constitution creates, provide numerous avenues through which the people are “responsibilised”. It is why we vote for constitutional amendments; why we have the power to recall our MPs; and why public participation is a creed in this dispensation, among others. We, the people, are supreme. And while we might not get plenty of chances to affirm our superiority, this time we do.
If arbitrariness were to creep back up in the exercise of power today, mutilating a constitutional spirit that many a gallant patriot fought and died for, it is because we, the collective: The people, the nation, the electorate, have allowed it.
Where we find ourselves now as a collective, is beyond the law. The BBI report at least forces us to consider critically our public sphere, which Jurgen Habermas defines as the realm of our social life in which something like a public opinion can be formed. How diverse, open, inclusive, and impactful are our public spheres? How do we breathe life into them to protect that vital constitutional spirit?
Failure to inform ourselves, to participate, and engage is to act in opposition to that constitutional spirit and in utter disregard of the moment we find ourselves in; engaging in that collective democratic self-asphyxiation; wilfully mutilating the constitutional spirit of our democratic struggle.
This article is part of a long series of articles on the rule of law in the context of politics and ethics. The views expressed here are personal and do not represent institutional views. The series is researched and co-authored by:
- Karim Anjarwalla, Managing Partner of ALN Anjarwalla & Khanna, Advocates
- Wandia Musyimi, Research Associate at ALN Anjarwalla & Khanna, Advocates
- Kasyoka Mutunga, Research Associate at ALN Anjarwalla & Khanna, Advocates
- Prof Luis Franceschi, Senior Director, Governance & Peace, The Commonwealth, London