Push for law review reveals masters of doublespeak

Do they say what they mean? President Uhuru Kenyatta, Deputy President William and former Prime Minister Raila Odinga at a past function. [File, Standard]

The raging debate on constitutional reforms exposes the doublespeak from the country’s top leaders, given their positions during the writing of the Constitution in 2010.

President Uhuru Kenyatta, his deputy William Ruto and ODM leader Raila Odinga are caught flip-flopping, especially on the preferred system of government and devolution, according to a review of the 1,100-page Hansard proceedings of the Parliamentary Select Committee (PSC) on the Constitution in 2010.

The record of proceedings exposes politicians who speak from both sides of the mouth, with President Kenyatta and his allies being among those who backed the quest for a hybrid system of government fronted by President Kibaki’s Party of National Unity.

It is a radical departure from the President’s current backing of an all-inclusive government.

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Hybrid system

Mr Kibaki’s PNU wanted a hybrid system, where a president elected by the people is the chief executive, and Cabinet ministers picked from among MPs. But Raila’s ODM insisted on a pure parliamentary system, with a powerful prime minister elected by MPs as the head of government.

At the time, Dr Ruto, who was an ally of then Prime Minister Raila, pushed for a parliamentary system as the best way to check the excesses of an imperial presidency. He wanted a powerful prime minister and a ceremonial president.

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On the system of government, Ruto, then the Minister for Agriculture, said: “I am very comfortable with a Parliamentary System that has clear checks and balances in the way that it is supposed to be, that we have a Prime Minister who is the Head of Government. We should also have a ceremonial President. The Head of Government nominates his Cabinet from Parliament and if he does not do a good job, Parliament passes a vote of no-confidence and he is changed and we move on .…”

But Speaking at Chatham House, London, on February 9 this year, the DP said: “The suggestion on the Prime Minister’s post has two problems: it does not solve the problem, which is that we need a functional, constitutional official opposition; and if created, it would still be taken by the winning party.”

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On September 8, 2019, Ruto, who has accused Raila of pushing for constitutional changes to create positions to help him gain power, said: “We will not entertain politics of creating positions for a few individuals at the expense of delivering services and empowering Kenyans .… Those propagating this are power-hungry and selfish.”

The compromise

The talks in Naivasha deadlocked on the system of government and high-level meetings were convened in Nairobi to resolve the impasse.

“Raila gambled and offered PNU a pure presidential system like the American one as a compromise,” a source who took part in the proceedings disclosed recently.

Now, Raila insists the country should embrace the parliamentary system with a powerful premier.

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A few weeks ago, the ODM leader said he favours a parliamentary system of government, arguing that the system “is viewed as a better way to raise the majority threshold in a country where tribes view each other with suspicion in the race for power.”

He is also lobbying for the introduction of regional governments.

“My proposal is that we adopt a three-tier system that retains the current counties, create regional or provincial governments, and retain the national government with a very clear formula for revenue sharing,” Raila told a devolution conference in Kakamega in April.

During the Naivasha talks, Uhuru also proposed a formula to ensure that “the national Government does not interfere with the devolved funds”, which led to the requirement that at least 15 per cent of Government revenue is allocated to counties based on the last audited accounts.

“The biggest fear for three tiers is how we can ensure that the national Government does not interfere with the devolved funds .… I believe that the greatest safeguard for devolved funds is not necessarily in institutions or structures that we have, rather it is the Constitution itself. We need to find a formula and in-build it in the Constitution so that we can protect those devolved funds,” Uhuru said during PSC proceedings in 2010.

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As President, Uhuru was recently at loggerheads with governors over the Division of Revenue Bill, with county chiefs accusing him of denying counties funds.

The governors and Senate wanted counties allocated Sh335 billion, which was Sh25 billion more than what the National Assembly had offered. Uhuru, however, said there was no more cash for the governors, adding that: “Some people (governors) think that we operate as if money comes to us like rain.”

Whipped into submission, the governors later settled for Sh310 billion.

Uhuru has also lamented the bloated Government wage bill, but the Hansard reveals that he backed a bloated Parliament during the talks. The President seconded a motion by Ndaragwa MP Jeremiah Kioni to create a Parliament of 340 members that would include the now-controversial seat of woman representative.

“I propose 210 as the existing, and another 90 thus gives it 300. Then 30 women and 10 special seats. So, it comes to 340 MPs,” Mr Kioni then said.

Uhuru, then the Minister for Finance, seconded the motion.

Eventually, the Constitution created a Parliament of 416 – 349 members of the National Assembly and 67 senators.

Initial proposal

During the Naivasha talks, devolution was another sticking point, with the initial proposal for a three-tier government – county, regional and national governments.

At the time, Ruto backed the creation of 14 regional governments, arguing that counties were too small and could easily be overrun by the national government.

But cost and political considerations led to an agreement on two levels: national and sub-national.

The other dilemma was how to arrive at sub-national units, with a suggestion to use the eight provinces as a basis rejected after regions like Rift Valley and Eastern felt they would be shortchanged as they were too large.

Yet another dispute emerged on what other number to settle one, aside from eight, with an initial proposal for 14, then 18 and then 21.

There was another fight on where to place Nakuru – either in south Rift or central Kenya.

To break the deadlock on the number of counties, it was agreed that the 41 districts that existed at independence, plus the additional six created by the Kanu government through Parliament, be the basis, which led to 47 counties.

“That way, nobody would have been seen to have lost,” the then Mandera East MP Abdikadir Mohammed, who chaired the PSC, told The Standard in a recent interview.

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President Uhuru KenyattaWilliam RutoRaila OdingaParliamentary Select Committee