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.
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.
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
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.
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.
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.
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.
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.
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.
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
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