Raila Odinga wants to see a parliamentary system reintroduced. It has been pointed out many times that ODM were at least complicit in the shift to a presidential system, when MPs met in Naivasha to review the Committee of Experts draft in 2010.
However, let’s move on. Parliamentary systems are not all the same. Generally, the essence is that the leader of government, usually called the Prime Minister in English, is a Member of Parliament, and the person who has managed to get the support of the largest number of MPs (usually the leader of the largest party in Parliament).
Ministers also usually have to be MPs. The other side of the coin is the basis of being Prime Minister is having the majority support in Parliament is that, if the person ceases to have that support, he or she can be removed by a vote of the MPs.
There is usually another person, a king, queen or president, who is the head of state but not of government. That person normally has very limited powers, most of which have to be exercised only on the direction of the Prime Minister. The head of state is these days expected to be non-party political and a national unifying force.
Almost every Kenyan draft Constitution, from the Constitution of Kenya Review Commission draft to the second CoE draft of early 2010, recommended a parliamentary system. The exception was the ‘Wako draft’ (the government mutilation of the Bomas draft, after Mwai Kibaki’s 2002 election victory converted him to a presidential system supporter). This proposed a presidential system though with someone called Prime Minister, who did what the President wished, while the President was head of government
Arguments made in favour of this sort of system include that it is more likely to produce a head of government from one of the smaller communities. This is presumably because a Prime Minister will usually be a person who has emerged at the head of a party, having probably served as an MP for some time, even as a minister. They have won the support of the party by their abilities and experience. On the other hand, a candidate for direct election as President may have no experience and is likely to have emerged because of their chances of appealing to the majority of the voters — the assumption in Kenya being such a person is likely to be from a big community.
Secondly, it is sometimes thought that the electoral process in a parliamentary system may not generate the same bitterness and tension as we see when the fight is for the position of the President: Seen as the ultimate prize for ambitious, and perhaps greedy, Kenyans. In most parliamentary systems, people vote just for their local MPs: It is the outcome of all those individual voting decisions that produces the make-up of Parliament that itself produces the Prime Minister.
Maybe there is some feeling that a party is less likely to accept as its leader a ruthless person (who might be a serious candidate for directly elected President). When ministers are MPs, there is a close connection between the Executive and the Legislature. And a Prime Minister who chairs a Cabinet of long-standing party colleagues might resist any temptation to become too autocratic, especially because those colleagues have good parliamentary and party links, and would be able to orchestrate rebellion with the party or the House. The approach should be cooperative and collegiate.
The system allows MPs to get experience in government, perhaps reducing the chances of the totally inept being elected to head government. It has been used, however, to buy support by making many MPs ministers. This is why our Constitution limits the number of ministers (CSs) — even though now MPs cannot be CSs.
The CKRC wanted most ministers to come from outside Parliament. They hoped this could produce technocrats in government. Also, people commented that ministers/MPs rarely appeared in Parliament and neglected their constituencies
THE BOMAS DRAFT
Under that draft, the President had a number of functions that go further than most heads of state in parliamentary systems. But they were not everyday administrative functions. They were mostly designed to be part of the system of checks and balances intended to keep every element of the system within their proper bounds.
President Uhuru Kenyatta’s State of the Nation speech the other day also involved the presentation of the annual ‘Report on the Realisation of National Values’. The origin of this report lies in the Constitution drafts that established a non-executive President. It was designed to involve a genuine evaluation by that President of government’s performance, rather than a self-congratulatory catalogue of projects.
The President could also suggest new laws, but had no way of ensuring they were passed. The President would also have had some role in identifying the new PM after an election. (It might in fact be better to leave this to a vote of the National Assembly once the composition of the House was clear.)
Under Bomas, the President could also propose that the PM be dismissed — but that could only happen if 50 per cent of all the MPs voted in favour, just as if an individual MP had moved the same motion.
A Cabinet decision could not be implemented unless signed by both PM and President. -That seems to go too far. The same is true of the provisions that the Prime Minister, ministers and others could not leave Kenya except with the leave of the President. Each might spark conflicts and deadlock.
VOTING IN A PARLIAMENTARY SYSTEM
In most parliamentary systems, a voter commonly considers three factors: First, which party does he or she wish to support, considering the parties’ policies and philosophies. Second (maybe even first) is the personality and competence of the party leader — who would be PM if the party won. And third is the calibre of the individuals standing for election in the constituency: Have they been or will they be a good constituency MP? The last is not relevant in system where one votes for party lists and not for local representatives (like South Africa).
HOW WOULD IT WORK IN KENYA?
Do our parties actually have policies and philosophies? At present it seems voters focus more on the leaders, and whether they are ‘one of us’ — or at least supported by ‘our leader’— rather than on the candidates’ qualities and potential for good leadership, let alone policies. Will that change? Will parties under a parliamentary system produce leaders — or, as now, leaders produce parties?
Will leaders — and their fan clubs (or parties) — be any less likely to rely on ethnic support, and any less tempted to stir up support on that basis? Will they be any less prone to bribe voters, whether by the improper use of public resources or by the use of outright bribes?
Arguably, changes will come about only if the spoils of office cease to be as tempting as they are now. As long as the quickest way to get rich is by plundering the state, and far too many aspiring ‘leaders’ can see no worthwhile career for themselves other than in politics, the prize of high office will prove to be so attractive that it will be impossible for them to resist all sorts of ethic manipulation and underhand practices that totally undermine any system and its supposed constraints and checks and balances.
Already, there are constitutional provisions that parties cannot be based on religion, ethnicity, regional basis, hatred of others, or engaged in bribery and other forms of corruption (Article 91( 2 )). These are cheerfully ignored by the relevant groups and parties — the Registrar of Parties, party leaders and their parties. Why would things change?
The supposed restraining influence of working in a collective Cabinet with close colleagues may equally cease to operate if bribery — rather than appeals to collegiality, and quality of policies and leadership — continues to be the dominant safeguard for leaders.