From a Kenyan ‘Handshake’ to Constitutional Reform: Towards a Bloated Semi-Presidential System?

The Kenyan Constitution has survived several amendment attempts. It now faces the most organised elite reform drive purportedly to address the winner-takes-all politics and ensure better ethnic balance. Nevertheless, the proposed reforms may merely create a complex, bloated and unworkable semi-presidential system. Moreover, despite the elite support, the adoption of the proposed reforms is far from certain – writes Mugambi Laibuta. 

On 9 March 2018, President Uhuru Kenyatta and former Prime Minister Raila Odinga engaged in a now famous  public ‘handshake’ signalling the end of political hostilities and commitment  towards working together for Kenya’s  greater good. The two were the main protagonists in the 2017 presidential elections where Kenyatta won the vote in a repeat election boycotted by Odinga.

Following up on the ‘handshake’ a ‘Building Bridges Initiative’ (BBI) was launched along with a Taskforce on Building Bridges to Unity Advisory. The Taskforce was composed of elected political leaders, representatives of religious organisations, political scientists and lawyers all appointed through Presidential Decree. A constitutional challenge to the authority of the President to establish the Taskforce was was dismissed by the High Court. 

The Taskforce was mandated to evaluate national challenges and make recommendations to build lasting unity in Kenya, alongside policy initiatives, administrative reform proposals and implementation modalities. Following nationwide consultations, the Taskforce launched its report with far reaching proposals for legislative and constitutional reforms. The report makes 14 legislative thematic proposals, including a law to ensure transparent procurement of goods, works and services in public institutions; a law to provide for prompt payment of goods and services procured by public entities and mechanisms for settling disputes over invoices; and a law to give higher education loanees a grace period before they can commence repayment of loans advance to them.

The most contested Taskforce proposal is a draft Constitutional Amendment Bill (Bill). The 2010 Kenyan Constitution is yet to amended. Attempts at reform, including to operationalise a gender quota for key political offices and popular initiatives, have failed. This partly speaks to the difficulty of constitutional amendment. Considering that the two prominent political leaders are behind the BBI initiative, the prospects for success appear higher. Nevertheless, there are no guarantees and the proposed constitutional reforms must pass through several steps outlined in the Constitution.  

Two possible pathways

The Bill may be processed through two alternative processes: a popular initiative that will culminate in a referendum, or a parliamentary initiative. The key proposals that will touch on the judicial independence, independent commissions, the bill of rights, functions of parliament (consisting of the National Assembly and Senate) and the structure of devolution (entrenched provisions) will require a referendum, in addition to parliamentary approval. Parliament may pass other amendments with a two-thirds majority relating to the expanded executive, restructured membership of parliament and county revenue share without the need of a referendum.

Alternatively, the Bill may be processed wholly as a popular initiative Bill, which will require support by more than one million voters and presentation to the Independent Electoral and Boundaries Commission (IEBC). If satisfied, the IEBC will submit the Bill to the 47 county assemblies for debate and approval. A majority of the counties must approve the Bill to move it to parliament. The Bill will require a majority of votes from each of the two parliamentary houses. If either house fails to pass the Bill, or in relation to entrenched provisions upon approval in each house, it will be submitted to a referendum. A valid referendum requires 20% turnout in at least half of the counties, and support by a simple majority of all voters.

Towards semi-presidentialism?

Perhaps the most notable reform proposal is the effective transition from a purely presidential to a semi-presidential system of government. Accordingly, the Bill introduces a new office of the Prime Minister with two Deputy Prime Ministers. Functions of the Prime Minister would include being the leader of government business in the National Assembly, overseeing the legislative agenda in the National Assembly on behalf of government, supervising the execution of the functions of ministries and government departments, and chairing cabinet committee meetings as assigned by the President. To qualify for nomination as Prime Minister, one must be a member of the National Assembly and the leader of the majority party or coalition of parties in the National Assembly. The President would have power to dismiss the Prime Minister. On dismissal, the position may then be filled by another individual from the majority party. However, if this fails, the Bill states that the President shall appoint a member who, in the President’s opinion, is able to command the confidence of the National Assembly.

In the proposed structure, there will also be two Deputy Prime Ministers appointed by the President from among the Cabinet Members whose functions shall be to deputise the Prime Minister and carry out functions assigned to them by the Prime Minister. Just like the Prime Minister, the Deputies may be dismissed by the President.

Despite the goal of taming winner-takes-all politics, the dominance of the presidency will likely continue.

The Bill also proposes to introduce the office of the Leader of Official Opposition who would be the person who receives the second highest number of votes in a presidential election and whose political party or coalition of parties has at least 25% of seats in the National Assembly. The current framework provides for two party leaders, a leader of the majority party and leader of the minority selected from among members of the National Assembly. The Leader of Official Opposition shall be third in the order of precedence after the Speaker and the Prime Minister.

Alongside the introduction of the positions of prime minister and deputies, the proposed change seeks to reduce the winner-takes-all politics that often characterises electoral contest, while also opening possibilities for elites from across ethnic divides.  Nevertheless, the increased number of new offices could unduly burden public coffers, enhance competition and even potentially make governance and government coordination difficult.  Moreover, the dominance of the presidency will likely continue. In addition to the power of the president to fire the prime minster, the Bill proposes to remove the parliamentary vetting of cabinet ministers.  The Bill also reintroduces the Attorney-General and the Cabinet Ministers as non-voting members of the National Assembly as was the case before the 2010 Constitution. The President will also have the discretion to appoint Cabinet members from among members of the National Assembly. This alters the separation of powers framework under the current Constitution where no member of the executive can sit in Parliament and there are clear boundaries between executive and legislative functions.

Ensuring gender balance?

The current Constitution provides that no more than two-thirds of members of elective or appointive bodies shall be of the same gender. Nevertheless, this is yet to be achieved and recently, the Chief Justice wrote to the President advising him to dissolve Parliament for not meeting the gender quota and not crafting legislation to remedy the situation.

To guarantee a more direct and effective means of ensuring gender balance, the Bill abolishes the position of ‘County Woman Representative’ in the National Assembly but increases the composition of the Senate to 94 members, being one woman and one man elected from each of the 47 counties. Currently, only one Senator is elected from each county. It is hoped that this tinkering with the composition of Parliament will deal with the challenge of attaining constitutional gender quotas. At the county level, the Bill proposes that a County Governor shall consider a person of the opposite gender as a running mate.

While the proposed amendments do not have specific provisions to ensure gender equity in the National Assembly and cabinet, including one of the deputy prime minister positions, no amendment has been proposed regarding the two-third gender rule. Accordingly, mechanisms would have to be found to ensure a comprehensive presence of women across all elective and appointive positions.  

Devolving resources, incentivizing counties

The proposed amendment advances the goals of resource decentralisation, which is also part of the attempt to reduce the winner-takes-all politics. This also serves to incentivise support as counties represent a critical downstream constraint on constitutional amendment through popular initiatives, whichneed approval of a majority of the county assemblies.

Accordingly, the Bill proposes to increase the minimum share to county governments from the revenue raised nationally from 15% to 35%. Moreover, e a Ward Development Fund would be created. The establishment of a national level ward development fund will emerge in a context where a majority of counties already have county legislation establishing and operationalising ward development funds. The presence of parallel funds could create potential complexities and counties may prefer to have more control for the disbursal of resources to the wards.

While counties will generally gain from transfer of resources from the proposed reforms, the powerful Nairobi City County, which hosts the capital, could be the loser.  If approved, the Bill will put Nairobi City County under the direction of the national government on key functions, including county health services, transport, planning, public works, firefighting and disaster management. The current national government has in the past drafted Constitutional Amendment Bills to have Nairobi City fully under national government. The proposed reforms would mean less resources allocated to Nairobi City County as national government takes over the key functions outlined above.

Enhancing judicial accountability?  

As a reflection of the political unease with an autonomous and assertive judiciary, the proposed reforms seek to enhance accountability of judges. Accordingly, the Bill expands the functions of the Judicial Service Commission (JSC) to include receiving complaints against judges, investigating and disciplining judges through warning, reprimanding or suspending a judge.  

At the same time, the Bill would create an Office of the Judiciary Ombudsman who will also be a member of the Judicial Service Commission. The Ombudsman would be nominated by the President with approval of the National Assembly. The Ombudsmanwould have power to receive and conduct inquiries into complaints against judges, registrars, magistrates, and other officers and staff of the judiciary, sensitise and promote engagement with the public on the role and performance of the judiciary and improve transparency and accountability of the judiciary. The expanded role of the JSC and the broad mandate of the Judiciary Ombudsman could lead to jurisdictional confusion and even conflict while increasing the number of presidential appointees into the JSC.

Election management and electoral disputes   

In an apparent response to repeated complaints over the independence of the Independent Electoral and Boundaries Commission, the Bill proposes to shift the composition of the Commission from a purely expert to a more politically representative body. This in essence brings about overt political party politics in the electoral management process. Accordingly, the Commission would have seven members, four of whom would be representatives of parliamentary political parties and who would hold office for a single four-year term. It is not clear how the other three members who will not represent political parties will be selected.

Concerning the resolution of electoral disputes, the Bill would increase the time for the Supreme Court to handle presidential election petitions from 14 to 30 days, in response to complaints in the past three presidential elections that the 14 day period was too short for petitioners to litigate their cases. On other election petitions, the Bill proposes to have the Court of Appeal as the final arbiter, with no appeals to the Supreme Court. This proposal may require an amendment of the provision providing that appeals from the Court of Appeal shall lie in the Supreme Court as a right in any case involving the interpretation and application of the Constitution.

Other changes

The Bill proposes to insert a clause on responsibilities of citizens into the Constitution, including the responsibility of every citizen to serve in the defence of the country. This proposal in effect introduces conscription into the Constitution for the first time. Conscription has never been part of any post-independence Kenyan law.

A key substantive progress is the enhancement of the right to privacy to the digital realm. Accordingly, the Bill proposes to include protection against infringement of one’s personal data. The explanatory note by the Taskforce indicates that this proposal aims at protecting personal data of citizens in view of the advancement and adoption of digital technology by a large percentage of the population and boosts the taming of surveillance capitalism. Kenya enacted a Data Protection Act in November 2019 and the proposed constitutional amendment could provide a good basis to control online data collection, processing and sharing.

Uncertainties remain

Overall, the proposals seem to have been inspired by recurrent political challenges resulting from a winner-takes-all politics, complaints of ethnic power imbalances, and to some extent equitable gender representation. Nevertheless, rather than guaranteeing a share of power to electoral losers,  the proposals merely expand the executive for the winning party or coalition of parties. 

Before they can take effect, the proposed reforms must go through the constitutional amendment process. Politically, Deputy President William Ruto has been widely perceived to be against the BBI ‘handshake’ as it somehow side-lined him. Considering the uncertainties of securing a two-thirds majority in parliament, the sponsors of the proposed reforms are likely to pursue popular initiatives. This attests to the dangers of popular amendment processes being ‘hijacked by political elites as part of intra-elite political machination’, despite their appeals to popular sovereignty.

While the popular initiative was perceived as a possible check on elite dominance, it has so far merely provided an alternative elite channel.

In addition to the procedural hurdles, a Petition has been recently filed in the High Court against any constitutional amendments. The petition seeks declarations that the 2010 Constitution contains unamendable constitutional provisions, specifically the chapters relating to sovereignty of the people, Bill of Rights, the executive and the judiciary. This petition is pending in the High Court, and its decision will not only determine the fate of the BBI reform drive but also outline how future amendments may be handled. However, it remains doubtful that the courts would declare unamendable provisions where they are not explicitly stated as such and where the constitution has express amendment clauses on all provisions.

On the political side, there is chatter as to whether the amendments will inspire President Kenyatta to vie for elective office at the end of his second and final term in 2022 to potentially fill the Prime Minister position. For Odinga, the proposed amendments are a fulfilment of his ‘handshake demands’ and could potentially bolster his ambitions to vie for and win the next presidential elections.

Mugambi Laibuta is an Advocate of the High Court of Kenya. He worked with the Kenya Committee of Experts on Constitutional Review and has been involved in constitutional review processes in South Sudan, Somalia and Chile.