There is clear Executive disorientation at State House today which the ‘mutiny’ by the Judiciary has only heightened.
Uhuru Kenyatta’s presidency seems to be sliding into an erratic phase marked by much foreboding and fear of blows struck by mockers, rowdy crowds, madmen, or even his own deputy.
In particular, the vastly emboldened Judiciary, political adversaries from his Kiambu backyard or some other unseen forces could pull a fast one. These combined factors are bestowing a permanent, enduring negative influence upon his already shaky administration.
Uhuru’s refusal to appoint six judges has caused open dissent, which marks a new normal for future presidents. The nagging question is: If the president can’t freely decline or assent appointments in his in-tray, what then is his role in this whole exercise?
And if his role is to rubber-stamp JSC recommendations, then what purpose do clauses needing his input serve?
The gradual evisceration of the Executive had been predicted long before the 2010 Constitution - highly rated as among the most progressive in the world in terms of guaranteeing basic human rights and giving citizens enormous powers to determine how they are to be governed - took effect.
An enraged President Moi - perhaps in derisive reference to his nagging detractors - correctly warned that future Kenyan presidents won’t be having much sleep.
Anyone who cares for good governance is bound to have a soft spot for the Judiciary and empathise whenever it is attacked. Yet by any frame of reference, the frequency with which citizens, politicians, the civil society and some state apparatuses have been taking the stage to insult the Kenyan presidency has been perplexing, and arguably qualifies the presidency as a ‘vulnerable institution’.
Not only that, but aiming mud balls at the president seems to earn one instant adoration and citizen applause - something completely inconceivable during Moi’s and Jomo Kenyatta’s era - particularly the former, when ‘even imagining the death of the head of state’ was treasonable.
We reiterate that many of the ‘lame-duck’ indicators of Uhuru are not accurate measures of the man’s worth, but the natural consequences of the populist 2010 Constitution which, as we have argued here before, was not borne of the cultural, social, and political ideals of the Kenyan cosmology.
It was only the other day that Kenyans were weaned from an age of extremes. Now, it is apparent that democracy can also be abused. The ‘glorious’ constitution is spelling doom for the sacredness of the presidency.
Uhuru is not necessarily a weak president. He is just a victim of an era of public intolerance, a period of constitutional quagmire where he cannot govern with enough latitude.
To criticise the president to the face, walk up to his dais and greet him by force, block his motorcade, and to ascribe all poor economic performances to him are now staple, yet his outrageously clipped powers allow him to do very little without breaching the rails of the Constitution.
This is in addition to his more fundamental constrictions: He cannot fire his deputy, has had to bear with an overtly activist Judiciary which some feel has been insufficiently deferential to the elected representatives of the people.
Viewed in a different way, the Constitution might again have shoehorned the president into his rightful place as a ‘servant-leader rather than an untouchable sovereign, forestalling a return of the dictatorships experienced during earlier regimes. But the outweighing downside is that emboldened Kenyans are now more intolerant and difficult to govern.
Suppose DP William Ruto successfully ascends to the presidency in 2022. Will the magical turnaround of our nationn - long anticipated by all Kenyans of goodwill - then happen?
Or will he run into the same headwinds of deadly schisms with his own deputy such as have bedeviled his erstwhile ‘bromance’ with his boss, Uhuru? Won’t he, when his turn comes, perhaps be even successfully impeached within the law?
Truth be told, the next president is awaited by the same vagaries of the Constitution as those that have bedeviled Uhuru. Our own creative and liberative constitution is eating our presidency, which is a necessary symbol of national unity.
Besides, the Covid-19 effects, the dragons of corruption, insubordination, and population increase which puts pressure on the limited resources will all be there.
The script of the movie will be the same in 2022 regardless of the faces of the actors. And it is the 2010 Constitution.