Complex scenarios that BBI does not clearly address
By Allan Mungai | November 1st 2020
In 2007, Kenya found itself in an unprecedented situation.
After a hotly contested General Election, the incumbent, Mwai Kibaki, who ran on a Party of National Unity (PNU) ticket, was declared the winner but his rival Raila Odinga of ODM had the majority in Parliament.
The violence that resulted from that election forced the two leaders to reach a compromise and form a unity government with Kibaki as President and Raila as Prime Minister.
That situation looks to have informed the proposal by the Building Bridges Initiative (BBI) report to reintroduce the hybrid parliamentary and presidential system that seeks to have a prime minister, two deputies and the leader of official opposition.
According to the BBI proposals, the president shall appoint the prime minister from the party or coalition of parties with the majority in the National Assembly. The candidate who comes second will become the leader of official opposition.
The proposal also hands the president the power to sack the prime minister and his deputies.
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However, that proposal has had many puzzled over the scenario it will create, with some people such as former Mukurweini MP Kabando wa Kabando terming it recipe for anarchy.
“(Imagine) Party ‘A’ wins president, party ‘B’ wins most MPs. So ‘B’ gets PM, ‘B’ becomes Official Opposition. How now? Or ‘A’ arbitrarily picks any ‘B’ MP as PM? Then ‘A’ sacks PM of ‘B’,” the former MP tweeted.
For instance, one of the questions asked is what it would mean for the country if the president and PM fall out yet their majority came from a coalition?
And suppose the PM comes from a party that is not in government, which agenda will he be pushing in the House?
What happens when the candidate who comes second in the election is an independent candidate? Do they still get to be the leader of official opposition without the backing of a party? Or if the majority party is not happy with the president’s choice of PM?
Pundits argue that the proposals could create a headache in the event that a party wins an election, but lacks a majority.
It also portends a government shutdown in the likely event that the president sacks the prime minister, observers point out.
Constitutional lawyer Bobby Mkangi says the proposal leaves the possibility of many scenarios playing out.
“The scenarios might look far fetched but they are not. The experience I have had in constitutional development has shown me that the scenarios you think are far fetched are most likely to happen,” he says.
In the proposals, there are no prescriptions towards securing the office of the leader of official opposition, which opens it up for frustration by the Government.
“They will have no reason to make sure the opposition is running a proper office,” he says.
Ndungu Wainaina, the Executive Director at the International Center for Policy and Conflict (ICPC), says the BBI document has such ambiguities because it was drafted by people who stand to immediately benefit from it.
“Constitution should not be drafted or amended by those who stand to immediately benefit from it. We need ‘veil of ignorance’ rules that facilitate making of generalised, prospective provisions without knowing the impact on particular constituencies or benefactors,” says Wainaina.
Certain proposals by the BBI are generating heated debate over the implications they will have, especially when put in past and current political contexts.
“The question I am asking myself is, have we sorted out the winner-takes-all question? For example, we have the president, I am the DP, (Kipipiri MP Amos) Kimunya is the PM because he is the Leader of Majority, (National Assembly) Jimmy Angwenyi (Chief Whip) ) as the deputy and Maoka Maore as the other deputy, what happens to the whole Nasa brigade?” Ruto posed.
Ben Sihanya, a professor of constitutional law at the University of Nairobi, does, however, does not see it as a recipe for disaster, but a solution to having a more robust party system and cultivating support across the country.
The president’s party, he says, does not always have to produce the prime minister, power can be shared.
“The presidential candidate must cultivate the idea that while they are running for president, they need to work with parties and coalitions across the country. But in the event they do not garner majority seats the prime minister will come from a different party and they will learn how to cohabit,” says Prof Sihanya.
He is conscious of the transient nature of political parties and alliances, arguing that if there was more at stake for a party there would be impetus to make it last.
“Parties have never been taken seriously by those who establish them, we need to cultivate the idea of a party-based government,” he says.
“If you have this kind of system it will mean that the president, prime minister and MPs must work through the party.”
Other proposals by the document, which have been questioned, include the proposal to have a youth commission with seven members of equal gender representation, at least four of whom have to be youth.
Those against the proposal question why the commission cannot be entirely made up of youth, since it is primarily set up to cater for their welfare.
Another is the proposal to include more women in leadership by entrenching the two-thirds gender rule.
The BBI proposes that the National Assembly will have 360 members based on proportional representation of votes attained at each county level. This means that political parties will have the mandate to fill the remaining 70 seats.
“Members representing the individual constituencies in the National Assembly will be based on a county party-list presented to the election body prior to the election date,” the Bill states.
However, that also introduces the argument of uneven representation of women since some counties will have women representatives and others will not.
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