President Uhuru Kenyatta is being relentlessly pressured by CORD to reform the electoral management body in Kenya, IEBC, ahead of the August 2017 elections. All along, the President has been categorical that he lacks the legal and constitutional authority needed to pursue the course of action urged upon him by the Opposition, instead calling on CORD to trigger the reform of IEBC through a parliamentary process.
Much has been written and canvassed on both print and electronic media on the legality of the President’s position, especially more lately, by the learned judge Lee Muthoga.
Indeed, the key hallmark of the 2010 Constitution is presidential powers that are highly bounded in an intricate system of checks and balances involving different branches of government as well as constitutional commissions.
Scholarship on presidential power in the United States reveals three broad theoretical approaches. Taftian perspective of presidential power (named after the 27th President of the United States, William Taft) adopts a strictly constructionist view of presidential power. This view holds that the presidency is a limited or constrained office whose occupant is confined to the exercise of expressly granted constitutional authority. Most of the early presidents of the US followed this theory in how they exercised the power of the presidency. Given the infancy of our constitutional order, the presidency’s adoption of restraint interventionism cannot be criticised.
In contrast to Taftian believers, the stewardship theory of presidential power calls for a strong, assertive presidential role that, in the words of Theodore Roosevelt, directs the president to do anything that the needs of the nation demand unless such action is forbidden by the Constitution or by the laws.
Arising from this expansive understanding of presidential powers, Roosevelt continued various wars abroad, cloaking his reliance on force without congressional authority on necessity and the imperative to keep “barbarous and semi-barbarous people in line”. He held that he was enjoined to act on behalf of civilised nations and to exercise an ‘international police power’ to address ‘chronic wrongdoing’ abroad. The echoes of Rooseveltian thinking could be heard in the manner in which the war powers of the president of the United States were justified during the term of President George W. Bush.
An even less benign view of presidential authority is captured by the so-called prerogative school of presidential power. This view argues that a power, which is not specifically mentioned in the constitutional or statutory text but is corollary to the execution of textualized roles, properly belongs to the president.
In this way, some presidents have claimed vast prerogative powers, based on their own reading of the Constitution.
Armed with these powers, they have unilaterally taken actions to resolve serious policy disputes or to manage crises, and then justify their actions to Congress and the American people thereafter, defending both the legitimacy of acting (their right to exercise power) and the authority of their actions (the wisdom of their policies). President Truman’s seizure of the steel mills during the Korean War, and President Nixon’s impounding of funds for domestic programmes during the Iran conflict are trite examples of the exercise of presidential prerogative powers.
Abraham Lincoln exerted so much power his presidency was later referred to by Cornell political scientist Clinton Rossiter as a “constitutional dictatorship”.
Uhuru Kenyatta’s is the first presidency under our new constitutional compact.
By urging caution and calling for parliamentary approaches to IEBC reforms amidst the din and noise of brazen interventionism, the President clearly wants to be remembered as one who sought to shift governance away from absolute rule in favour of institutional responses.
Are Kenyans keen on a president who works within the four corners of the Constitution or one who would expand discretionality and fiat beyond clear constitutional powers?
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