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There is more to political campaigns and statecraft than meets the eye

MACHARIA MUNENE
By Macharia Munene | November 1st 2021

President Uhuru Kenyatta and Chief Justice Martha Karambu Koome with Judges of the Court of Appeal at State House, Nairobi during the swearing-in ceremony.  [PSCU, Standard]

Every state has governing machinery that comprises powerful players. Where republics exist, the head of that system is the President. The Constitution requires him to work with the Judiciary and the legislature as alternative centres of power in running the country. The three are tied in a check and balance power arrangement.

Although none of the three is expected to over-reach itself or interfere with the performance of the others, they often forget the principle of separation of powers and the doctrine of checks and balances. Part of the problem is that it is not constitutionally clear which branch of government is positioned to ‘check and balance’ the others, when and under what circumstances.

With each branch arrogating itself the right to interpret the meaning of constitutional clauses, national interests or how to check the others, friction becomes the norm. Within the Judiciary, for instance, doctrinal differences have emerged between former Chief Justice Willy Mutunga and current Chief Justice Martha Koome on whether or not members of the judiciary can go on strike.

The issue of judges striking arose from Executive differences with the Judiciary whether the president is primarily a rubber-stamp to accede to everything even when he has reservations. The problem is not unique to Kenya or to the current times given that the current presidential and judicial structures are products of discrediting both institutions in the campaigns for change. The current 2010 Constitution, a consequence of rushed emotions and logic to get rid of Moi symbolism, seemingly lost common sense and is full of conceptual contradictions and lacks clarity in critical areas. These might explain the friction within the Judiciary and with the Executive as they all engage in power play.

The power play is most visible in the presidency as the official centre of executive power in the country but the presidency does not have monopoly of exercising power. There also are alternative centres of power outside the constitutional structure that leave the public wondering where they derive their power. The force of individual personalities, those who cannot be ignored, might account for the emergence of unofficial alternative centres.

Raila Odinga is an example of such forceful personality creating his own centre of alternative power. Having signed documents with President Uhuru Kenyatta in March 2018, Raila enjoys the trappings of State power. The fact that there was hardly any disagreement when former CJ Mutunga declared that Raila was Kenya’s ‘co-president’ implied that Raila was nationally accepted as an alternative centre of power. Did this fact erode the presidency?

Besides the existence of alternative centres of power outside the constitutional framework, the presidency is internally split. The perception, right or wrong, is that the president and his deputy are at logger-heads. That perception has percolated downwards and explains a lot of political silence and allegiance shifting as the August 2022 elections get closer.

There is fear of the unknown as elected leaders start hedging their survival bets on which side to fall. During elections, political confusion is normal, especially with campaign infighting to control money and have access to the commoditised candidate. 

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