Some time last week I witnessed the limits of education. On a panel discussing something that the Government had done, was doing, was going to do, whatever, a panelist suggested that Kenya would benefit if the "opposition formed a shadow government", the same as existed in the 10th Parliament before the promulgation of the 2010 Constitution. therefore, she saw many benefits in the establishment of the office of the Leader of the Official Opposition as proposed by both the last Jubilee administration and the current Kenya Kwanza one. She, and many like-minded pundits, have given up on the constitutional arrangements we have made for the government and they seemingly have no interest in holding any of their elected politicians to account.
The reliance on magical thinking is distressing, but not surprising. It informs much of the public discourse on public administration and politics. We are susceptible to this kind of magical thinking: if I make this change, that has nothing to do with the underlying issues, I will improve my lot in life. It almost never is true. It almost always leads to more destructive outcomes.
The constitutional structure of the government is not that difficult to discern. It is a presidential system, with parliamentary vestiges no one thought would become a problem thirteen years after we promulgated the constitution. The president, deputy president, cabinet secretaries and attorney-general no longer sit in parliament; parliamentarians no longer sit in the cabinet; and the president can only appoint the chief justice and judges of the Supreme Court with the approval of parliament. Parliament is divided into the majority party and minority party who, collectively, are supposed to oversee the national executive and judiciary (also known as checks and balances). While it is expected that the majority party in parliament will be the president's and deputy president's party, under the current arrangement it is possible to have a divided government where the majority party controls parliament and the minority party holds the presidency.
As a consequence, the Official Opposition is an anachronism from the Westminster system that Kenya did away with on the 27th August, 2010. An Official Opposition is a vital part of a parliamentary system where the members of the executive are elected parliamentarians as well (save for the attorney-general, who is an ex officio member of parliament without a right to vote). An Official Opposition would choose, from among members of its Parliamentary Group, shadow ministers who would lead the questioning of members of the cabinet during Parliamentary Question Time (in the UK, they call it Prime Minister's Question Time).
What President Uhuru Kenyatta and, now, President William Ruto, did was to extend the vestiges of the Westminster system far beyond its utility for the purposes of the transition from the former constitution to the current one. As a result, the general public, including commentators and pundits, are under the impression that the government is still divided into a ruling party and official opposition, rather than the majority party and minority party. Therefore, few see nothing constitutionally untoward in the suggestion that the office of the Leader of the Official Opposition should be revived "in order to hold the government to account" rather than the majority and minority parties holding the executive branch to account as the constitution contemplates.
I am all for inclusion as a way of mediating political conflict; but I don't think it is in the national interest to establish a constitutionally dubious office simply because the incumbent's regime is uncertain about its political legitimacy. From the Yash Pal Ghai commission to the Committee of Experts, the majority of voters were adamant that they did not want parliament and the executive to conspire to undermine the national interest. Most voters wanted a clear separation of the executive from parliament; the independence of the judiciary was taken as a given. President Kenyatta overworked to blur the lines between the three. President Ruto still has the opportunity to reverse course though he appears hell-bent on walking the same path as his immediate predecessor. An office of the Leader of the Official Opposition may solve the immediate political problems of the incumbent; it will do nothing to hold the national executive to account or improve constitutionalism. Only the ordinary Kenyan on the street will come off the worse.
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