BBI presents agenda for real national dialogue to begin

President Uhuru Kenyatta with Deputy President William Ruto, former Prime Minister Raila Odinga and the Building Bridges Initiative taskforce members when he received BBI report at State House, Nairobi.

Return of the Prime Minister is the new big thing in the Building Bridges Initiative (BBI) report that was released to President Uhuru Kenyatta and ODM Leader Raila Odinga at State House Nairobi, yesterday.

Nothing has divided Kenyans in recent times like the BBI, despite the fact that in principle nobody knew what would be in the report.

Yesterday, the chairman of the BBI Taskforce, Senator Yusuf Haji of Garissa, led the team in the presentation of the report to the two principals who commissioned it. Hopefully, the country can now breathe and engage in constructive reflection on the report.

The one area that has been waited for with batted breath is the architecture of the Executive and the authority that goes with it. This is because the dispute that gave birth to the BBI was about Executive power. In 2017, President Kenyatta and the ODM Leader went through a bruising Presidential election that could only be described as politically-divisive, ethnically- charged and often violent and bloody, with tragic loss of limb and life.

Following the nullification of the August 8, 2017 presidential poll, political temperatures went a notch higher, polarizing the country even more. The opposition National Super Alliance (NASA) boycott of the repeat election, the emergence of the nebulous National Resistance Movement and the self-styled  titular swearing in of Raila as the People’s President were all factors around contestation for the Executive.

Will the BBI proposals heal Kenya’s political wounds and cure the ugly contests in the Executive? Is the return of the office of Prime Minister the magic wand that Kenya has been waiting for? Both the grain of history and the proposed architecture of Government would be useful in an attempt to answer these questions.

History shows us that Kenya’s presidential system has been the mother of ethnic polarization and election-related violence. This is on account of the excessive political power that the holder of the office has exercised through the first four regimes.

President Jomo Kenyatta started off as the first Prime Minister in a Parliamentary system of Government, when Kanu beat Kadu to second place in the May 1963 elections. Kanu won 64 of the 117 seats in the House of Representatives, while Kadu came second with 32. Akamba People’s Party and other smaller parties took 8. Jomo, therefore, became the Prime Minister on account of his position as the Kanu Leader.

The struggle for Executive power in the country began as soon as Kenyatta became the PM in a government that had left some of the authority in the hands of the British. Finance, Defence and Foreign Affairs, for example, were not part of the internal self-government that came with the Madaraka Government on June 1, 1963.

These would come with subsequent amendments of the Constitution in 1964. Meanwhile, suspicions about ethnic domination through the Executive were on the rise. In October 1963, in the lead up to Jamhuri and Independence on December 12, the country had an experience not dissimilar from the Uhuru-Odinga one that led to the March 2017 handshake.

In the 1963 scenario, the tribes in Kadu were worried about what was called “domination by the Kikuyu and Luo.” Accordingly, they threatened to secede from the planned Republic of Kenya. They announced plans to set up the Sovereign Federal Republic of Kenya. Ronald Ngala would be the President and Daniel Arap Moi the Vice President. However, Ngala was not fully sold to the idea. He was, in point of fact, disturbed that his colleagues in Kadu had circulated a map of the Sovereign Federal Republic without adequate consultation. It took the intervention of the youthful Martin Shikuku to thaw matters.

Regardless, by December 1964, Jomo and those around him – and especially the Minister for Constitutional Affairs Tom Mboya, and Attorney General Charles Njonjo, had amended the Constitution. They abolished the Office of Prime Minister. Jomo became President without being elected to the office. The Parliamentary system was dead. A monarchical presidency was in charge. The Senate, too, died with the 1964 amendments as did the devolved government. Henceforth, the Presidency would straddle the nation like the albatross.

This has made the Office of the President the most sought for office, because of both power and prestige. It is understood that when you are the President, you have the best of everything in the country, together with your cronies and tribesmen. The office is in the end not about service to the nation, but an opportunity to enjoy the fat of the land. Appointments in government are described with words like “lucrative” because of the gravy the occupant is expected to enjoy. And in a sense, the President and his people are technically above the law, hence the notion of Executive impunity.

The political chaos that the country has had to go through since independence boils just to one thing – Executive fiat. So are the tribal clashes of the 1990s and the post-election violence of 2007/08 and 2017. Even grand corruption and state capture in the Judiciary and Legislature are factors of a draconian presidency. So, will BBI cure this miasma once and for all? Can it?

The proposed changes mirror very closely the Grand Coalition Government in which President Mwai Kibaki and Prime Minister Raila Odinga shared power. While they definitively came from two different – and even antagonistic political -- parties, it is not clear that under the BBI proposals the Prime Minister’s position will go to a different party from the President’s. It is proposed that the President shall appoint as prime minister a Member of Parliament from a party having a majority of seats in Parliament .

There is every likelihood that the President and the Premier could be from the same party. If such an arrangement were to be followed today, for example, the Prime Minister would come from the Jubilee Party, which has 140 of the 290 members. The combined NASA power is 103. Under the proposed arrangement, therefore, NASA would remain where it is today, with Jubilee lapping on more Executive lustre.

The proposal on the Premier has two other significant fatal flaws. First, it allows the President to pick up just about any Member of Parliament from the Party with the majority in the House. This person does not have to be the leader of the party, in the case of the Opposition.

Internal conflict is possible within such a party over who becomes the Premier. The proposition also assumes in such a case that the Opposition will have more members in Parliament than the President’s party. Since Parliament is supposed to approve the appointment, a majority Opposition in the House is likely to frustrate the effort to appoint the Premier to no end.

The BBI proposals recognise the potential for a stalemate and suggests that a mechanism should be found for ensuring that “the process is not indefinite.” How this will be done remains to be seen.

But, significantly, the BBI proposes that if no party has a majority in the House, then one that “appears to have the support of majority MPs” will produce the premier. Once again this is a loose cannon ball that could end up anywhere, with unknown consequences. It is difficult to determine the instruments that will be used to measure “appearance.” Indeed, appointment to such an important office should not be left in a grey area.

The other grey area is that the President shall form the Cabinet in consultation with the Prime Minister. The objective and justification of this consultation may need to be made clearer. It is not clear, for example, why the President would want to appoint the Cabinet in consultation with one of his appointees.

Overall, the report flags important questions but remains vague and woolly. Some of these pertain to the proposed shadow cabinet and even to the possibility that the Official Opposition could also easily find itself providing the Prime Minister. Hence you will have the incongruent situation where one senior member of the party is in Government, while the other one is the Leader of the Official Opposition.

The summary of the report remains vague but also points to the need for the real national dialogue to begin. What the BBI is presenting is basically the agenda for conversation. Hopefully Kenyans will steer clear of noisy controversy about the report and begin the bridge building national conversation. The BBI proposals on the Executive, for the time being at least, do not appear to cure the ailment they set out to address.