By H E Rt Hon Raila Odinga
On August 27, 2010, President Mwai Kibaki and I led the nation in promulgating the new Constitution. This, our third post-independence constitution and the fifth in total (including the Lyttleton (1954) and Lennox-Boyd 1957-8 constitutions), was 20 years in the making, one of the longest constitution making processes in history.
In 2002, we had pledged as the National Rainbow Coalition to restart the aborted constitution and enact a new one within 100 days. We failed. That failure contributed to the 2007-8 post-election crisis that brought the country to the brink of civil war and State failure. It took flirting with disaster for us to come to our senses and give ourselves a new constitution.
But why did we need a new constitution in the first place, and why is it necessary to amend it now? I have expounded on this subject at length in my book, The Quest for Nationhood: A Roadmap to Our Future, published in June last year. Here I will focus only on two proposals that are the subject of political debate today, namely, restructuring the national executive or presidency and the proposal for a third (regional) tier of devolved government, both of these along the lines of the Bomas Draft Constitution.
That said, a brief historical context is helpful. For three decades, we were governed by an authoritarian constitution that was imposed on the country by Kanu using its overwhelming victory (84 out of 124 seats) in the independence elections. This constitution abrogated the political bargain that our founding fathers struck in Lancaster House, in which they agreed that Kenya would be a federal, parliamentary democracy. The independence, Lancaster House constitution only lasted 18 months from attainment of self-rule on June 1 1963 to the first Jamhuri Day on December 12, 1964.
In the years that followed, all the structures that had been put in place in the independence constitution to entrench freedom, democracy, rule of law and good governance were discarded. Within a decade, we were a single party dictatorship, with a presidency more powerful than colonial governors.
The regional governments which would have provided political counterweight to the centre were dismantled and even local authorities, which enjoyed considerable autonomy during the colonial era, were progressively brought under the control of the central government.
In the Memorandum of Understanding titled Building Bridges to a New Kenyan Nation that President Uhuru Kenyatta and I signed on March 9, that Kenyans have given the name “Handshake” we identified nine issues. One of these is divisive elections. We have held six general elections since the re-adoption of multiparty politics in 1991, which is one more than the single party era (1969-1991) general elections. Of these elections, only one presidential election, the 2002 one, was unanimously upheld as free and fair.
We hoped that a constitutional dispensation would propel our democracy forward and put the era of election crises and violence behind us. It has not. In effect, we have been a multiparty state longer than we were under single party rule, but we seem no closer to a democratic transition than when we began.
Not all elections in Kenya are divisive. This moniker speaks to only one — the presidential election. Throughout the constitution making debate, it was recognised that the centralisation of power in the presidency was one of the things we needed to change — we characterised it as the problem of the “imperial presidency.” The only question was what to change it to.
The obvious alternative is a parliamentary system in which the functions of head of state and head of government are separate, with the former bestowed on a president, typically elected indirectly, and the latter exercised by a prime minister who is the leader of the majority party or coalition in parliament.
Political scientists who have studied the merits of the two systems conclude that parliamentary systems are more stable, and better suited for culturally diverse societies. Indeed, it is often observed that the US is the only pure presidential system that has stood the test of time. Many Kenyans were reluctant to give up directly electing their president, a power they had only just regained. We compromised on a dual executive system, similar to France, where executive authority is shared between an elected president and a prime minister and cabinet appointed from the majority party or coalition in parliament.
We also agreed on a devolved system of government with four tiers, namely, the national, regional, district and location. I have elaborated on the case for revisiting these provisions in my book. In any case, we all agreed that the Bomas constitution conference left some pending business around the issues of Devolution and the Executive. As we campaigned for the draft constitution which we later promulgated in 2010, there was agreement that there was a small percentage of the document especially on devolution and executive that would have to be revisited.
On the question of the presidency, I wrote: “The Bomas Draft Constitution had proposed a hybrid system, with executive power shared between a president and a prime minister. The ultimate draft produced by the Committee of Experts had retained this. It was unexpected because, in the entire history of the Constitution-making process, this system had not been a strong contender. The proposal for the more unusual hybrid system had been largely informed by the recognition that, while the pure parliamentary system was more suitable, we had to take into account the political reality of an existing presidency.”
In fact, the presidential system as currently exercised in Kenya, is still a strong tool for exclusion. There is simply no way small tribes like the El Molo, the Turkana, the Digo, among others can ever produce a president under the current system.
On devolution I wrote: “Devolution is now a reality and Kenyans have embraced it enthusiastically. But I believe that the 15 units proposed by the Bomas Draft would have made for stronger devolution on both political and economic grounds. The 15 regions proposed in the Bomas draft were in line with devolved political systems around the world. South Africa has nine provinces, Mozambique has 10 regions, Canada has 13 provinces and Germany has 16 states. Nigeria has 180 million people and land size several times the size of Kenya and has only 36 states. Most other countries are in this range.
I believe we have now reached a point where we can usefully revisit and re-examine the devolution issue. In every part of the country, we have seen county governments coming together to form regional blocs. These are an indication that the leaders have begun to feel the limitations of being divided up into 47 counties, particularly in the area of economic development initiatives.”
It is self-evident that these realities are not the many things that detractors and naysayers are suggesting. They are principled and considered positions that are faithful to the spirit of our Constitution. I am confident that the proposals we will put forward in the coming days will allay some of the concerns.
In conclusion, I request Kenyans to take a moment today to reflect on our journey as a country so far. Of what value is a powerful office if its pursuit must cost lives and tear the country apart every five years? The Bible tells us, in the book of Mathew 5.19 that “if your right eye causes you to stumble, gouge it out and throw it away. It is better for you to lose one part of the body than for your whole body to be thrown in hell.” I believe it is time to gather the courage and gouge this problematic institution from our system, lest it lead us into the abyss.
The writer is a global icon and Kenya supreme leader