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Leader of official opposition returns in proposed reforms

By Wilfred Ayaga | October 22nd 2020

President Uhuru Kenyatta and ODM leader Raila ODM receive BBI report at Kisii State Lodge on October 21, 2020. [Sammy Omingo, Standard]

Under the Building Bridges Initiative (BBI) proposals, a powerful leader of official opposition will counter the Prime Minister in Parliament. 

The holder of the office shall be the person who receives the second-highest number of votes in a presidential election.

His or her party or coalition of parties, however, must garner at least 25 per cent of all seats in the National Assembly.

The proposals are designed to create a powerful office, with all trappings of an alternative government, similar to the House of Commons in the United Kingdom Parliament.

The person serving as leader of opposition will be third in precedence in the National Assembly, after the speaker and the prime minister, which give him visibility in Parliament and the first opportunity to poke holes into Government’s responses in the House.

The person will also appoint a Shadow Cabinet that will mirror the Cabinet in Government. The Cabinet will articulate alternative policies and keep the sitting Government in check.

In a shadow Cabinet arrangement, the leader of opposition appoints people to specific areas of policy to challenge their counterparts in government.

Instructively, the report has proposed that the office of the leader of the opposition have a budget, a suggestion that makes the position attractive. 

Election loser

The BBI report states: “Apart from the creation of a prime minister, Kenyans supported the creation of the position of leader of the opposition with a shadow Cabinet. Stakeholders stressed that the office should be provided with adequate financial and technical support to enable it effectively discharge its role of holding the Government to account.”

This position does not exist in the current Constitution, creating a situation where the election loser is thrown back to the streets.

The closest the current presidential system comes to such an arrangement is the position of leader of the minority, who acts as the counter to the majority leader. The two positions are created under Article 108 of the Constitution, which the BBI proposals now seek to amend.

The proposal for the creation of the position of leader of the opposition, however, is not new. Last year, Deputy President William Ruto during an address at Chatham House in London, argued that the position will cure the winner-take-all scenario that condemns election losers to five years out in the cold. 

“Elections in Kenya are close-run contests. Often enough, the winner and runner-up achieve more than five million votes. The winner ascends to a formally constituted leadership role while the runner-up becomes a virtual stranger in leadership,” said the DP in his address.

The office also existed under the old Constitution, with President Uhuru Kenyatta being the last holder before he crossed over to the Party of National Unity, under the leadership of President Mwai Kibaki.

Under the new proposals, there are rules on how the leader of official opposition may be replaced.

“Where the person is unable to assume office, or the office becomes vacant under Article 103, the political party or coalition of parties not forming the Government to which the person was a member shall nominate another person to be the leader of the official opposition,” read the proposals.

Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021
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