Constitutional implications of Uhuru-Ruto fallout

“You are going to have lunch with the President. The menu is humble pie. You’re going to eat every last spoonful of it. You’re going to be the most contrite sonofabitch this world has ever seen,” James A. Baker III

At first glance the bitter fall-out between President Uhuru Kenyatta and his deputy William Ruto concerning the agenda of Jubilee administration’s second term and the 2022 political transition is an affirmation of the old truism that there are no permanent friends or enemies in politics. Yet when you dig deeper into the roots of the fall-out, the dispute between the ‘dynamic duo’ as described by former President Mwai Kibaki, the spectre of a Ruto presidency seem to pose existential threat to Uhuru.

Hence the dispute in Jubilee’s administration is more profound than the usual fallout between Nasa principals Raila Odinga, Kalonzo Musyoka, Musalia Mudavadi and Moses Wetangula.

We can hardly imagine a worse political fall-out with attendant risks to a country’s national security than the ongoing feud between Uhuru and Ruto. On one hand, Kenyatta has vowed he cannot transfer power to his deputy whom he considers to be a thief.

The Feud

On the other hand, Ruto dismisses his boss as a clueless leader who has shunned his advice and fallen under the spell of his erstwhile political competitor Mr Odinga. No doubt Uhuru and Ruto are angry towards each other and it behoves Kenyans to understand this anger given the obvious adverse consequences of a dysfunctional presidency to our national security and stability during a critical political transition.

These concerns are more profound when a decorated strongman in the name of Uganda’s President Yoweri Museveni enters the scene as the guardian angel and political godfather of Uhuru’s deputy.

In his phenomenal book Darkness At Noon, Arthur Koestler explains that when you want to extract truth or secure a confession you need to provoke the subject into a state of anger, resentment and guilt.

In fact, psychologists say that statements made when someone is angry are likely to be truthful. Uhuruto relationship has been characterized by resentment and guilt over matters of loyalty and Jubilee agenda in the second term.

Uhuru has publicly lamented that during the “co-presidency” in the first term when his deputy wielded power, Jubilee achieved very little compared to his second term when he wound-up the shared presidency using the Handshake. Ruto has retorted that all development programmes were attained during the first term when he was a “substantive deputy president,” a clear reference to when Ruto was the unmistakeable mover and shaker in the administration.

To add salt to injury, Ruto adds that Kenyans are suffering economically precisely because Uhuru and Raila are more interested in political matters like BBI and power sharing instead of the Big Four Agenda that was supposed to consolidate the gains in the first term.

These accusations and counter-accusations have revealed three things whose significance goes beyond the their feud.

First, the President’s admission – in effect – that it was Ruto rather than him who was most responsible for running government between 2013 and 2017 should be very concerning to all. Thinking about Jubilee’s shared presidency between 2013 – 2017 it should be easy to understand David Murathe’s discomfort with the import of the two terms presidential limit on Uhuru whilst his partner Ruto would be free to run Kenya another 10 years without Uhuru!

Secondly, the fact that Uhuru was compelled to resort to the handshake with Raila in order execute a palace coup d’etat against Ruto and escape the political dominance of his deputy is a pointer to lack of political equilibrium in the presidential system under the 2010 Constitution. Stated differently, whereas one of the strengths of the US presidential system is that it gives the president broad powers to form and run affairs of the state, the Kenyan variant makes the president a hostage of a politically powerful deputy without whose support he may not get elected or run the government effectively.

Thirdly, it bears noting that Article 146 of the Constitution provides that in the event of a vacancy in the office of the President, the deputy takes over for the remainder of the term. In the context of Jubilee’s toxic and dysfunctional presidency, Ruto would get into the driving seat of an administration that has not only shown him unadulterated “madharau” but which he believes has been heading in the wrong direction. Whichever way we look at it, the war of attrition between Uhuru and Ruto contains the seeds of political instability that could very easily trigger unmanageable constitutional crisis.

Talking of constitutional crisis, it is worthy to note that Uganda’s political instability in mid 1960s to early 1980s that paved the way for take-over of power by the National Resistance Army and subsequent establishment of Museveni’s permanent presidency are directly traceable to the conflict between law and politics under Uganda’s 1962 Constitution similar to Jubilee’s dysfunctional presidency. Uganda’s 1962 Constitution contained provisions that fomented a power struggle between Prime Minister Milton Obote and Sir Edward Mukasa, the President.

At the height of this power struggle, on February 22, 1966, Obote announced that he had assumed all powers of government in the interest of ‘national stability, public security and tranquility”. Two days later, Obote suspended the 1962 Constitution, except the parts relating to the courts, the civil service, the armed forces and the National Assembly in order to ensure continuity of the basic functioning of the State. In April, 1966, Uganda’s Parliament abolished the 1962 Constitution paving way for the promulgation of the 1967 Constitution which vested all executive authority in the President, in this case Obote.

Consequently, Mutesa was evicted from State House and eventually forced into exile. Obote was subsequently overthrown by Idi Amin with the help of Tanzania’s forces and the civil war that ended up with Museveni’s victory through guerilla warfare. The critical point is that the roots of Uganda’s democratized tyranny ultimately lie in the political imbalances in its 1962 Constitution.

Uganda case study

This tragic story about the roots of political dictatorship in Uganda are relevant to Kenya in three critical respects. First, after the removal of Zimbabwe’s Robert Mugabe from power, Museveni emerged as the undisputed leader of the strongmen in the East and Central African region. Museveni barely conceals his ambition to recruit as many African leaders as he can into the club of authoritarian leaders characterised by permanent presidencies. Given now that Ruto is the clear favourite to be Kenya’s fifth president, unless the Handshake Brothers pull a stroke of genius to stop him, it should be concerning that Kenya could be on the verge of getting a president who not only publicly admires Museveni but looks up to him for political mentorship.

Secondly, as the seven-judge bench of the Court of Appeal prepares the judgement on constitutionality of the BBI Bill to amend the 2010 Constitution to change the Executive, it should help for the learned judges to reflect on the political dynamics at play concerning the efficacy of our presidential system and to draw the right lessons from the tragic history of Uganda.

Finally, Kenyans should know that the efficacy of the US presidential system stems from the fact that the US president is the undisputed head of state, chief executive and party chief. True the choice of a vice-president might help in election or re-election but in no way is the US vice president an “equal shareholder” in the resultant administration or a coalition partner. There is only one alpha in the US presidency. To be sure, it is unimaginable how a forceful and politically dominant alpha deputy like Ruto would survive there.

When James A. Baker as President Ronald Reagan’s Chief of Staff, uttered the words in the introductory quote, the point he was making is that the US presidential system has room for only one political superior and everyone else in the administration must exhibit unreserved, total loyalty and deference to the President. The vice-president must exhibit the wimpish demeanor of Moi’s long serving Vice President George Saitoti and cannot contradict the president privately or publicly. You cannot imagine, Uhuru serving a meal of humble pie on Ruto. On the contrary in the recent by-elections in Kiambu County, it is Ruto who served humble pie on his boss two times in succession.

The warning

Turning back to Kenya, Ruto is certainly averse to the notion that Uhuru is his political superior probably because in the first place he agreed to serve as his deputy on the calculation that he would be able to impose his will upon his boss. In retrospect, Ruto was not entirely wrong if the record of Jubilee’s first term is any indication. In fact, the more you think about this the more it seems that if in 2002 Uhuru was Moi’s project to wield influence post-retirement, the first term of Jubilee bears all the hallmarks of Uhuru Project Mark II.

Tragically, the BBI constitutional amendments to redress the fundamental weaknesses of our presidential system are fairly low-brain. Accordingly, whatever happens after the Court of Appeal renders its judgement, all responsible political actors should acknowledge the looming prospects of Uganda-type tyranny befalling our country.

The writer is a constitutional lawyer. [email protected]