Needed: Power balance between Executive and the LegislatureBy Njoki Ndung’uConsidering the prevalent merriment typical of the Christmas season, the significance of today in the nation’s political history will probably be lost in the usual feel-good festivities.
Today is after all December 27. It is the first anniversary of the disputed polls that sparked an orgy of violence and destruction that almost torn asunder our country. The hasty and controversial declaration of President Kibaki the winner in the presidential vote sparked countrywide and deadly unrest.
Supporters of his key opponent, Raila Odinga resulted to violent protests to contest what they believed was a stolen election.
Senseless destruction of life and property followed. The country was zoned into turfs controlled by ethnic-minded goons. Kenyans turned against other Kenyans leading to mass exodus of "foreigners". Parts of the country become no-go zones for those guilty of belonging to the "wrong" tribe. Horrendous attacks and retaliations were planned and executed. The body count rose. By the time Kofi Annan and the African Union helped hammer a truce that set up the National Coalition Government, more than a 1,000 people lay dead, hundreds displaced and millions worth of property left in ruin.
The negative consequences of the bitter disagreements over who won the presidential vote are still reverberating across the country. Stark and shameful evidence of our moment of madness still scars the country in squalid camp sites of the internally displaced, ruined and abandoned homes and idle farms. Memories of the bereaved, the grieved and the impoverished still fester. The decibels of dissonance from a bloated, disparate Government stitched in expedient strings continue to grow louder.
Useful memoriesAnniversaries are useful for retrospective analysis. They offer a good opportunity for refreshing on useful memories. They are a perfect time for an assessment of achievements if any. They are the right moment to gauge performance against set targets. In our case, having apparently learnt vital lessons and amid our leaders big and lofty talk on what the country needs to do to avoid a recurrence of the regrettable madness, today should ideally be a time to pull out the score card.
There are a number of must-entries in the latter. Post-mortems on the disputed elections have more or less isolated the key causative factors. There has been near-unanimity among key decision-makers that outdated and anachronistic governance and historical and social injustices catalysed the chaos. Equally, the country has been more or less agreed on the remedial reforms necessary. Thus an appraisal of desired changes versus achievements so far would be good fodder for today.
The beginning must surely be with the Electoral Commission of Kenya (ECK). It is guilty of bungling the election. It provided the matchbox that lit the tinder box.
Details of the shocking magnitude of its incompetence and complicity by a section of its officers were laid bare during the Kriegler Commission. The latter understandably recommended its dissolution in favour of a leaner, professional and competent outfit. The Waki team was also harsh on ECK’s performance.
After *footing on the agenda, the Government has, to its credit, finally found the requisite amity to kill ECK and form a care-taker alternative. But the true test of its commitment will be in the staffing and operationalisation of a permanent and not interim body. This framework should be introduced together with new constituency boundaries as well as a formula for combining the first-past –the-post seats with additional seats on a Mixed Member Proportional Representation (MMPR) to ensure representation of minorities and marginalised groups, and a specific reference to gender equity.
The Government however scores poorly in political reforms. First, it has failed to deliver a new constitution within the one year deadline envisioned by the National Accord. The main reason why the presidential poll is so emotive in this country is because of the near-imperial constitutional powers vested on the Executive. The President has vast powers to use or abuse even whimsically so. In our local arrangement where the winner takes all, the electoral stakes are pushed dangerously high.
Power balanceThe ideal solution is not a power sharing arrangement between the President and the Prime Minister as two individuals. Actually what we need is a power balance between the institutions of the Executive and the Legislature. It is necessary to reform the constitution in such a way that the President is required to seek Parliament concurrence in decisions with fundamental implications for the country. Creating the position of Prime Minister who would be the leader of the party with majority of MPs in Parliament and who would be the leader of Government while the President is the leader of the State would be an important dilution of the current State House powers.
An assessment of the prevailing political set up in the country however points to a worrying disproportionate shift of power from one arm of the Government to the other. If left unchecked, there is a genuine danger of replacing the Executive dictatorship with a Parliamentary autocracy. Lately, the latter body has been flexing its muscles. Whereas an assertive Parliament is healthy for the country’s democracy, it must be tempered with constitutional restraints against runaway hegemonic tendencies.
Second, the political class has failed its supporters by refusing to share power with them in the recent elections of party officials. The exclusion of women, youth and persons with disabilities from senior positions in the bigger political parties is a significant failure of those parties to transform from conservative male dominated institutions to liberal forward looking all-inclusive outfits. They have cleverly managed to meet the requirements of the Political Parties Act but without addressing the rationale for those requirements; that is so old school! Let’s hope voters are watching and will be so much the wiser in their support for political parties next time around.
Reforms in the Judiciary have also lagged behind. The already drafted Judicial Service Bill should have been part of the constitutional package that ushered the ECK out.
This Bill will give the Judiciary the necessary financial Independence it needs from the Executive. Our leaders must stop moaning about the lack of independence of our Judiciary when the power to ensure such independence really lies in the hands of Parliament, otherwise surely in real political speak, tutasema Washindwee!
Finally, the Government must also urgently pull its socks on land reforms. Apart from the urgent need for land redistribution, we need to rethink our culture with regard to land ownership.
Dialogue should be encouraged to think about title of property or assets that is not necessarily land. Only five per cent of the land in Kenya is arable; yet our population is growing and we need to feed and house it.
Solutions to the land question must therefore included the management of the economy providing real alternatives such as affordable housing for Kenyans both in rural and urban areas.
Let me conclude by passing on an SMS message I received on Christmas Day, which I think reflects typical Kenyan humour richly spiced with tongue-in-cheek undertones; "May your happiness increase like the recent flour prices, your joy be plenty like the salaries of our MPs, May you be kept safe like Bush from the shoe and your worries disappear like Petrol this week." Do have a Merry Christmas and a happy New Year, if you can!
—Njoki (ndungunjoki@yahoo.com) is a former Nominated MP and an advocate of the High Court.