Continuity Prevails Over Change in Naivasha
The process of drafting the much-awaited constitution for Kenya has now reached its final stages with a political compromise reached in Naivasha between the two parties (PNU and ODM) forming the National Unity Government.
Solomon A Dersso, Senior Researcher, APSTA Secretariat, ISS, Addis Ababa, The process of drafting the much-awaited constitution for Kenya has now reached its final stages with a political compromise reached in Naivasha between the two parties (PNU and ODM) forming the National Unity Government. Although Kenyans have finally breathed a sigh of relief as the Parliamentary Select Committee (PSC) on the Constitution announced that agreement has been reached between the parties, the PSC draft constitution has left many wonder if that is the Constitution that many Kenyans yearned for for so long.
When Kenya descended into violence in the aftermath of the 2007 election, many analysts put the blame on the structure of political power. Accordingly certain structural issues were identified as requiring particular consideration through constitutional review. The first related to the power of the president, which assumed an imperial role that is reminiscent of 17th century European absolute monarchs. The second involved a highly centralized form of state structure that put all political and socio-economic resources in the hands of the centre with little or no regard to regions. When the two parties signed a deal negotiated by former UN Secretary General Koffi Annan ending the violence, it was hoped that these would form part of the issues to be addressed through constitutional review.
The harmonized draft prepared by the Committee of Experts, which is said to reflect the desires of many Kenyans, made a serious attempt to address these issues. First, it introduced a mixed system in which the power of the executive was divided between a president and a prime minster. This promised not only to remove the possibility of returning back to an imperial presidency but also to end the winner-takes-all politics that eventually erupted into violence. Second, it also proposed a devolved form of government structure in which political and economic powers hitherto accumulated in the national government shared between the centre on the one hand and the regional and local level governments on the other. This was hoped both to rectify the exclusion suffered by many communities and regions and to nurture their sense of equitable participation and inclusion in the processes of the state.
On all of the areas of reform, the revisions made by the PSC fall far short of addressing the institutional woes that led to the post-electoral violence. With respect to the executive organ, the PSC draft is said to have adopted a pure presidential system modelled on the US system. While the president is given huge powers, unlike in the US system, the PSC draft has no effective mechanisms to check on the powers of the president. As one former Kenyan MP observed, the proposed system provides a perfect camouflage for sneaking in imperial presidency. The renowned constitutional expert Yash Pal Ghai also observed that this system will perpetuate the feeling of ‘either in or out’ and hence the rivalry that led to the violence in 2007.
Similarly, the PSC draft made very little provision to decentralise power. It has kept the old provinces as extension of and under the direct control of the national government. While one commentator observed that the PSC draft diluted devolution beyond recognition, another lamented that ‘[i]n devolution the essence of division of power and resources that provides self-governance at local level, capable of providing checks and balances to the exercise of power at the national level is now a distant mirage’. This falls far short of anything that may ally the fears of continued domination of national government and resultant exclusion of hitherto marginalized regions and communities.
Seen in the light of the above, Naivasha is anything but a political monument to celebrate. It rather marks the prevalence of political expediency over principle, continuity over change. Together with the prevailing conditions of grand corruption, impunity and ‘tribalism’, one feels compelled to conclude that this may leave Kenya in much the same, if not worse, situation as it was when it went to the polls in 2007. History may determine that Naivasha was not the occasion where the wishes of Kenyans were defined.
