The Path to Political Ruin

The agitation to change the Constitution is a consequence of Cord leaders’ refusal to agree that on March 4, Kenyans made a choice as to their leaders. That choice was a constitutional mandate for Uhuru Kenyatta and William Ruto to rule and reign.~ Ahmednasir Abdullahi, Sunday Nation, 18/08/13 (Agitation for constitutional change will fail)

The words "rule" and "reign" do not appear anywhere in the Constitution of Kenya. Indeed, they did not appear anywhere in the former Constitution of Kenya. Rulers reign over a people, whether they receive the people's consent or not. In a Republic like Kenya, presidents and deputy president govern; they do not rule nor do they reign over their peoples. That is an important distinction which Mr Abdullahi seems to ignore.

Presidents Kenyatta I, Moi and Kibaki ruled. Their reigns were frequently reigns of terror. Presidents Kenyatta I and Moi detained hundreds of Kenyans for opposing their reigns of terror. President Kibaki's security ministers ruthlessly suppressed even a whiff of a threat to Mr Kibaki's presidency. It is for this reason that the Committee of Experts, even after the Naivasha fiasco, designed the presidency in such a way that the National Executive would not rule, nor would it reign over us. They deliberately designed it so that there was a system of checks and balances, similar to that in the United States of America's federal government. A popular feature of the checks-and-balances system in Kenya is that the President cannot unilaterally appoint his Cabinet; he must get the approval of Parliament. This is the case too in the appointment of Principal Secretaries, heads of state corporations, senior members of the diplomatic corps, the Chief of Defence Forces, et cetera.

Despite this, Mr Kenyatta's minions seem not to have realised this. Some of his senior-most civil servants behave as if he is a reigning monarch whose word is like holy writ from on high. They continue to issue "instructions" and "directives" over this, that or the other. They forget that they no longer enjoy untrammeled powers. They must seek the guidance of commissions, independent offices, Parliament or the Judiciary. In other words, Mr Kenyatta and Mr Ruto must govern; they must lead.

Even amongst the cognoscenti of the idea that a President rules, there have always been misgivings about the untrammeled exercise of presidential power. Jaramogi Oginga Odinga was one such person. In his Not Yet Uhuru, he did not disagree fundamentally with the idea of a president who ruled; he only disagreed with the manner in which a president ruled. He proposed a system of checks and balances that excluded constitutional and public institutions but elevated the party to play that role. It is because President Kenyatta I marginalised both the constitution and the party that Mr Odinga opposed his rule.

Mr Abdullahi must understand that in a Kenya where civil society, such as it is, is practically impotent or compromised, the only institution that can corral the presidential exercise of sovereign power is the Constitution. It is the Constitution that grants the President power; it is the Constitution that prescribes how that power is to be exercised, and how it is to be checked that its exercise is of benefit to the people of Kenya. It does not grant the President free rein to do as he pleases. In other words, Kenyatta II cannot - and should not be allowed to - rule as Kenyatta I did.

Mr Abdullahi is, of course, right: Raila Odinga and CORD are misguided in thinking that an electoral college will guarantee Mr Odinga victory in 2017. They forget or ignore that there are years to go before the general elections are held again and that is a period that Jubilee can exploit to its advantage. Even if the exercise of presidential power is circumscribed by the constitutional checks-and-balances, UhuRuto have the opportunity to use their bully pulpit to great effect. They must, however, rein in their more excitable apologists. The removal of Muthui Kariuki as the State's mouthpiece was a step in the right direction. It is only when it is impressed upon them that they must govern, not rule, that they will succeed in thwarting the plans of Mr Odinga and his cohort. If they insist on listening to those urging them to rule, that is a path to political ruin.