Why ODM went presidential

By The Standard on Saturday team

It was expected to be a contentious point that would either break or make the new constitution.

But when it came on Thursday, it surprised, nay, shocked even the keenest of observers on both sides of the political aisle at the ease of convergence of opinion.

Yet within Prime Minister Raila Odinga’s ODM party inner sanctum, the tabling of a ‘pure’ presidential system before the Parliamentary Select Committee meeting in Naivasha was a masterstroke cleverly weaved together and kept secret for days.

It is emerging that ODM top brass, which had for years been advocating a parliamentary system to tame ‘imperial’ presidency met twice last week when it was agreed they would promote a pure presidential system.

It was then that a team of technocrats called the Technical Team was then roped in to refine the position before the meeting started on Monday. It is understood ODM wanted to take a proactive approach, seemingly agreeing to a revised presidential system unlike the one contained in the Harmonised Draft Constitution.

By drawing the pure presidential system, and getting the meeting in Naivasha to agree to it, ODM seems to have had their way, without arousing suspicion from other members who may have wanted an imperial president as suggested in the draft document.

In the agreed system, the power wielded by the President will be drastically cut in addition to being the focus of scrutiny from the other branches of government – the Legislature and the Judiciary.

The proposed pure presidential system is tailored along that of the United States with strong separation of powers, checks, and balances.

There will be no clandestine promises for positions in government and wanton creation of ministries and political positions to accommodate vested interests.

Under the proposal, the president will have his running mate, who will become the vice-president. Out will go the office of the prime minister and the two deputies as structured in the current political arrangement.

The implications are that the country will have a leaner government of popularly elected leaders, as opposed to those hand picked along party lines.

But Immigration Minister Otieno Kajwang’ read mischief in the arrangement. To him, some members of the Parliamentary Select Committee (PSC) think they are targeting Prime Minister Raila Odinga.

"They think that the law is being made for Raila, but they misread the mood in the country because Kenyans think otherwise and they will come to realise that later," said Kajwang’.

Debate on the system of government has shifted from the parliamentary system, which was favoured by the majority in the Bomas draft, the presidential system in the Wako draft, the hybrid system in the Committee of Experts (CoE) draft, and now the pure parliamentary system.

Kajwang’ warned that the so-called pure presidential system will be a bigger monster than the current imperial presidency.

"The President can ignore all other institutions, including Parliament and the Judiciary, and there was therefore no use for establishing the Committee of Experts because their input was ignored," said Kajwang’.

Should the draft be adopted then the country would use institutions to provide for checks and balances and guard against executive excesses. Parliament will have its own calendar. The President will not prorogue Parliament or delay its opening to suit his own political whims. "The President will not be able to pick half of the MPs and put them in the Cabinet as is the practice now," said former Constitution of Kenya Review Commission member Mutakha Kangu.

First, just like in the US, the President will pick members of the Cabinet from outside Parliament. These, like in the US, will be subjected to intensive vetting in Parliament. That means that only qualified people whose integrity is beyond reproach will serve in the Cabinet.

Secondly, the pure presidential system will have the second chamber of the House or the Senate as in the US.

Sources told The Standard on Saturday that members of the PSC were on Friday evening discussing the need for a bicameral parliament. The Senate will be composed of members representing regions. That further reduces the President’s influence over Parliament.

"The pure presidential system should have a senate because it is involved in the process of impeaching the President whenever there is need for disciplinary measures," said an ODM member of the PSC.

The PSC has agreed to create 47 parliamentary seats for the senate as proposed in the revised Harmonised Draft Constitution. The senators will represent the 47 counties, these being the original districts, excluding those created by former President Moi and President Kibaki.

The third feature in the system is an independent Judiciary whose members are not appointed by the President, without vetting.

Clear separation of roles will mean that MPs will concentrate on legislative business and put members of the Cabinet under close scrutiny.

The ODM insists that for the pure presidential system to function properly, devolution should include three tiers of government – national, regional, and county.

Since the new constitution will have a strong Bill of Rights, the President will be forced by law to respect the rights of citizens.

Political analysts Adams Oloo expressed optimism that a pure presidential system will end imperial presidency and chart a new political dispensation.

However, Nairobi lawyer George Kegoro differs with Dr Oloo, arguing that any system of government is good with effective checks and balances to minimise abuse of power.

"It does not matter whether we go presidential or parliamentary as what matters are the measures taken to minimise abuse of power," said Kegoro.

Oloo posits that a pure presidential system would ruin political careers of ambitious politicians eyeing the presidency.

But lawyer Harun Ndubi dismissed the pure presidential system as a cosmetic measure that will not serve the interests of Kenyans. Mr Ndubi also cautioned that the pure presidential system would kill political parties, as there will be no motivation to strengthen them.

"The best system would have been the parliamentary model because the hybrid system we have was a transition to the parliamentary," said Ndubi. He felt there would be no effective accountability because the President may cut deals with MPs who are desperate for survival.

Oloo also says the country may experience a presidential run-off in the 2012 General Election, as no candidate may be able to win more than 50 per cent of the total votes cast.

"Since the first multi-party elections in 1992, the highest percentage a presidential candidate has managed is 36, and no one may go beyond the 50 per cent mark in 2012," said Oloo. Moreover, those who fail to secure the presidency will remain ordinary politicians.

Oloo also predicts new political re-alignments may emerge, since there will be limited appointments to be dished out by the President.

"With the positions of prime minister and his two deputies being done away with, some of the emerging alliances like the KKK [Kikuyu, Kamba, Kalenjin] alliance may be jolted because it may not be easy for the three forces behind it to agree who among them steps down for the presidential candidate and his running-mate," said Oloo.

But he believes the system would end clandestine promises for vice-presidency to various persons as a trick to win votes, since the occupier of that position will have been the President’s running mate.