“Raila team asks for one-term president” said the Star when reporting the submission it said was to be made by ODM to the Building Bridges Initiative or the Handshake team. The party has since said the document has merely been circulated within the party for discussion.
The headline largely misses the point. The central focus of Raila’s submission seems to be that the head of government would not be the President, but a Prime Minister, in a parliamentary system.
Raila has usually supported a parliamentary system, and has often said he would like to go back to “Bomas”. So what did the National Constitutional Conference (Bomas) recommend in that 2004 draft?
THE BOMAS SYSTEM
The Prime Minister in parliamentary systems is the member of Parliament who has the support of the largest number of MPs (in our case it would be in the National Assembly).
Identifying who that person may be left to a vote in Parliament, or involve the head of state (monarch or President). How active that involvement of the head of state is depends on the Constitution and traditions of each country.
Under Bomas, the President would have invited the head of the largest party to be Prime Minister and form the government. The President would have been a bit more active if the Prime Minister did not emerge clearly from the elections. If the head of the largest, and even second largest, party of coalition of parties could not get support of a majority, the President would try to identify who could get such support. However, that nomination would have to be put to a vote in Parliament in seven days, and if an overall majority of the House could not agree on a Prime Minister, there would have been another general election.
So far, this is not very different from the role various presidents, and even monarchs, perform. But some other powers of the President would have gone a bit further than many. Important was the opportunity to address Parliament. As well as an annual speech presumably announcing the government’s plans, and another reporting progress in achieving the national goals, values and principles, the President could address Parliament any time.
Some other presidential powers depended on instructions from some other body, but there was provision for the President and Prime Minister to work together to ensure that the country’s international obligations were fulfilled, and that various independent officers and state officers could operate independently and effectively. Exactly how this was to happen was not very clear, and could have given rise to conflict.
The basic idea was to give the President rather more of an oversight role over the government than is traditional in parliamentary systems and to prevent the Prime Minister being over-powerful. Other presidential powers included being able to propose that the Prime Minister be voted out of office by Parliament.
But the President had no powers of policy making or government decision making. It was still a parliamentary system, not a mixed one (like the French for example where the President has much more of a political and policy making role as you can see from current events in France). The government was headed by the Prime Minister, who chose the Cabinet, chaired it and dismissed it.
The Bomas President would have been directly elected by the people, so would have a legitimacy in terms of popular support independent of any political party whether in government or not. This is the Irish procedure. The President would have had at most two five year terms of office.
Apparently, the ODM draft proposes a single seven-year term for the President, and that the MPs and Senators would elect the President. This latter point is a bit like the Indian model, but there the electors are all the elected Members of state Legislative Assemblies and Members of both Houses of Parliament (so the party in power at the national level may not have a dominant voice).
A seven year term could have the interesting result that the President and the Prime Minister did not see politically eye to eye, perhaps making the oversight role of the President more meaningful.
But to concentrate on the term of office of the President is to ignore the question of who would govern – and that would be the Prime Minister and Cabinet. To look at President Duterte of Philippines is quite irrelevant: he is the sole head of government, like our current presidential arrangement.
It is likely that the ODM proposals will also include suggestions that have earlier come from NASA. These have included an inordinate number of jobs for the (mostly) boys: President, two deputy Presidents, a Prime Minister and two Deputy Prime Ministers.
Having a lot of big jobs enables bargaining to take place if it seems necessary to involve in government groups other those that “won” the election. But it is not inevitable that this is how they will be used. The media recently reported how NASA would have distributed these jobs if they had won the 2017 elections: it seems that the goodies of office would have been shared among Raila, Moses Wetang’ula, Musalia Mudavadi, Kalonzo Musyoka and (at one point) Isaac Rutto. But on that basis the Kikuyu and most of the Kalenjin would have felt as excluded as the Luo, Luyha and Kamba felt they were in 2017.
The Nusu Mkate government in 2008-13 was an ad hoc powersharing one but not a true parliamentary system. It had a bloated Cabinet – to be inclusive.
Some people are anticipating that a wide-ranging coalition may fight the next election together, and the outcome could indeed be a government, if not of all the talents, of all the major ethic groups.
Some countries have adopted law to achieve something like this. Under the 1997 Constitution of Fiji, any party that won 10 per cent or more of the seats in Parliament was entitled to a proportionate share of Cabinet seats. The resistance that this sort of idea faces is shown by what followed. Each main party won one of the next two elections, and the other main party had enough seats to be entitled to sit in Cabinet. Yet the leader of each winning party used technicalities to prevent that happening. When eventually it did happen (some time after the second of those elections) it seemed to be working not too badly, until a coup intervened.
Are things like this a good idea? Some will think so, because it should reduce the risk of violence.
There are other implications, though. One we have seen with the handshake: the absence of any real political opposition to the government. The idea of an opposition is not criticism for the sake of criticising, but because all governments need to be kept on their toes in a systematic way. There is something particularly ironic in the idea of an oppositionless parliamentary system. It is sometimes thought that one benefit of a parliamentary system is that it usually involves a “shadow government”: a group of opposition MPs who each follow in some detail the work of a particular ministry, able to understand its work and its failures and to make a well-informed critique.
It is not clear exactly what the ODM proposal offers to those who support this set-up but are not President or Prime Minister. Deputy to a President with very limited power would hardly be appealing. Deputy Prime Minister is a bit of a non-job, too; one of two deputies even less so. A guarantee of a powerful cabinet post like Cabinet Secretary Finance may be more enticing.
A matter of concern is whether this would actually solve anything long-term. Over time we must move away from politics as building coalitions of ethnic groups, to politics based on policies. This is what the Constitutions aims at when it bans ethnic parties. Does the ODM idea advance or retard this movement? Or is it more about ambitions of individual politicians?
by Jill Cottrell Ghai and Yash Pal Ghai