By Tom Wolf

Following the PSC’s momentous deliberations in Naivasha, it appears major changes in the country’s constitutional structure are in the offing. This is so even if it remains unclear just when they will be implemented, and whether all approved changes will come into effect at the same time.

But whenever they do, a central objective is to replace Kenya’s long-standing hybrid presidential-parliamentary system, in which the President must be an elected MP, and only MPs can be appointed to the Cabinet.

The motivation here is the recognised history of executive power abuses that also informed the drafts that emerged from Bomas and the Committee of Experts.

In these versions, however, shifting to a parliamentary system headed by a prime minister (as well as devolved authority) was seen as the best way of reducing, if not eliminating, such abuses. By contrast, the PSC’s preference is for a presidential system, but one having at least a modest ‘fire-wall’ between the Executive and Legislature. Key among the measures to achieve this is that all MPs taking up Cabinet posts must resign their seats. Such resignations, of course, will then trigger by-elections to fill the seats left vacant.

This mirrors what happened in New York State where Senator Hillary Clinton resigned to become President Barack Obama’s Secretary of State two years into her second, six-year term. But such ‘Capitol Hill-poaching’ is extremely rare, however, given the prestige and power of the Senate in the American system; indeed, even appointments from among serving members of the House of Representatives, let alone of state governors, are unusual.

Given the many differences between the US and Kenyan political systems, and however beneficial this provision might be in terms of overall constitutional reform, the question arises as to its practical impact on politics, including just how attractive such posts will be when offered by the President, as well as the President’s own calculations in this regard.

To begin with, what criteria have determined Cabinet appointments under the current system? Although I am aware of no specific published study on this topic, anyone familiar with our political history can list the main ones, keeping in mind the somewhat contrasting dynamics in the single and multi-party eras.

Perhaps most important is that appointees be locally influential figures. Such influence is often related to the ethnic community from which they come. Indeed, at times Cabinet appointments have been seen not so much as personal-communal rewards, but as constituting an ‘olive-branch’ or ‘invitation’ to ethnic groups associated with the President’s opponents, as a way of at least softening their opposition to him, if not actually winning them over, usually following their entrance to Parliament as nominated MPs (for instance, Dalmas Otieno and Joseph Kamotho in the 1990s, when Moi’s Kanu failed to win any seat in Nyanza and Central provinces).

Of course, one’s personal popularity, wealth and social-business networks have also mattered. So, too, does the individual’s position within a political party, whether the President’s or another with which the latter has or desires to have a close working relationship, as, for example, in alliances formed during the president’s own (recent) election campaign.

Such factors also feed into the criterion of personal trust, especially for particularly sensitive Cabinet posts, while personal experience is obviously yet another one, especially for the more specialised ones such as Finance and Justice.

In sum, then, such appointments have three closely related objectives: to reward past service, to maximise desired performance in Cabinet, and to earn a gratitude-debt for future political pay-back.

More generally, in a political system largely devoid of ideological or even distinct policy contrasts, the use of such Cabinet posts for both rewards and incentives has been a central ‘weapon’ in the president’s armoury of rulership, contributing to the stability of the system as a whole.

Given the above summary, how might this new provision work? Let us start from the President’s own perspective. First, given the greater independence of Parliament, will it serve his interest to pluck from it some of his more influential allies there? While effective performance in Cabinet requires considerable political acumen, allowing one’s most experienced and trusted lieutenants to remain in Bunge might make more sense, in terms of ensuring success for one’s legislative agenda – at least if the parliamentary opposition is strong. Just ask Obama how important such allies are, after Senator Edward Kennedy’s death and the loss of his Massachusetts Senate seat to the Republicans. Perhaps, then, it would make more sense for the President to bring into the Cabinet at least some close allies who lost parliamentary contests. But the point is, when parliamentary and presidential elections are not held on the same day, the options on all sides multiply, which serves to weaken the ‘fire-wall’ between these two branches.

Turning to the prospective appointees, what might be the costs, or at least the risks, of such a job-change? Will they be free, and able, to influence the choice of their successors? That is, will Cabinet duties – and their president – allow active participation in the party nominations and by-elections? More generally, how might such individuals who are senior officials in their respective parties continue to exert influence within them, having left elective politics? One could apply this hypothetical scenario to Simeon Nyachae as from 2003, then Ford-People chair, and leader of a small but crucial group of mainly Gusii MPs who in large part owed their seats to him, had he been forced to resign his seat to join the Cabinet in 2004.

Perhaps equally important, given the fact that Cabinet members will continue to serve at the President’s pleasure (which may possibly turn to displeasure), such officials may want to be sure that if sacked, their replacements will quickly resign, allowing them to re-take their original seats in the resulting by-elections. As such, they may seek to ensure that their successors remain nothing more than weak place-holders. By contrast, recall the ‘forced’ resignations of sitting MPs to make way for presidentially-preferred ‘newcomers’, like Charles Njonjo in the 1990s and Uhuru Kenyatta in the 1990s.

More worrying, perhaps, what sort of promises of power and benefits will the president have to offer to coax sitting MPs out of their seats, especially given the remuneration and other benefits MPs now receive? On the face of it, this might encourage even higher levels of corruption than have been witnessed in the past.

Given such considerations, there is also an embarrassing risk that a Cabinet seat offer might be rejected, so that at least some of the posts eventually are given to those who were not actually the president’s first (or even second) choice.

On the other hand, the possible substantial increase in the number of constituencies, as well as the devolution proposals, would seem to down-grade the currently ‘lordly’ status of individual MPs, but which might be countered by additional resources being channeled via the CDF mechanism.

Whether these measures would be enough to make Cabinet appointments more attractive than would otherwise be the case, however, remains to be seen.

Considering the foregoing, it is clear that however challenging it is to agree upon and enact constitutional reform, to systematically analyse the actual impact of any such changes is an equally important, and difficult, task.

—Dr Wolf is a governance and research consultant in Nairobi.