Kenya’s constitutional history did not develop in a vacuum. To understand the recent limitations placed on the powers of the executive by the 2010 constitution, the case for viewing Kenyan politics in the long durée remains compelling.
Uhuru Kenyatta seems to be Kenya’s least powerful president – at least as suggested by a number of recent developments.
Kenyatta has spent much time and energy during his second term in office defending the basis of his Building Bridges Initiative, otherwise known as the BBI. He has also had to defend his rekindled dalliance with his closest challenger for the presidency in both the 2013 and 2017 elections, Raila Odinga.
Uhuru’s famous March 2018 handshake with Raila is not only wreaking havoc within his own Jubilee Alliance party, but has also made his Mt. Kenya political base restive. The climate of intolerance that he attempted to create – unleashing the security agencies on recalcitrant members of his party – following his détente with the leader of the largest opposition party in parliament, the Orange Democratic Movement (ODM), seems to not have yielded much for him, after all. Kiambu Woman Representative, Gathoni wa Muchomba, is now the latest supporter from the president’s base to decamp to the Tangatanga movement, the Jubilee wing associated with the Deputy President William Ruto, which has opposed the handshake and the BBI process.
For several months following the handshake, Kenyans grew accustomed to an increasingly irritable and angry president, demanding but not quite able to command full loyalty, especially within his party. The country became used to bitter public diatribes that the president unleashed in his mother tongue, targeted at people who disagreed, or criticised his leadership. Uhuru Kenyatta continues to be on the defensive regarding his under-performing administration and his expensive mega-infrastructure projects. With his party the Jubilee Alliance declared damaged by his deputy president, Uhuru constantly distances himself from what he now describes in public as “politics”.
Now, whenever Uhuru speaks at the launch of various “development” projects, the president is careful not to mention the Big Four Agenda – affordable universal health care, food security, manufacturing and affordable housing – a dim prospect given the ravages of the COVID-19 pandemic and the disastrous economic record that preceded it.
Since 2013, for Uhuru and members of his administration, the space for making and swiftly implementing public policy has been severely constricted. The requirements for public participation and the involvement of multiple players in the governance process have slowed down the wheels of authoritarian-technocratic rule.
Uhuru’s administration has also had to grapple with constant public criticism, especially when he fails to abide by the law.
Broadly, this is the result of the ramifications of a public language of rights, public participation and consultation, which has been given prominence across the country by the Kenya 2010 constitution.
Limiting the executive branch
While recent analyses and other writings celebrating the 13th May 2021 ruling of the Constitutional and Human Rights Division of the High Court of Kenya in David Ndii and Others vs the Attorney-General and others — widely referred to as the BBI judgement — have been informative and measured, they have elided a crucial understanding of how politics actually works in Kenya.
While focusing on the judgement’s attention to Kenya’s constitutional history since independence, the commentators have glossed over a critical political matrix that underlines Kenya’s constitutional and legal transformation. This is to say that Kenya’s constitutional history did not develop in a vacuum, and that to understand the recent limitations on the powers of the executive, the case for viewing Kenyan politics in the long durée remains compelling.
In her analysis of the judgement, Ambreena Manji highlights the emphasis that the judges, who declared the BBI process unconstitutional, put on Kenya’s constitutional history, arguing that the BBI judgement should be considered historic in two ways: in its elaboration of the basic structure doctrine and in its historical reading of the struggle for constitutional reform in Kenya.
Recent analyses and other writings celebrating the 13th May 2021 ruling of the High Court have elided a crucial understanding of how politics actually works in Kenya.
But the question still remains: why was it possible for Kenyans to bequeath themselves a progressive constitution that limited executive authority in 2010 and not, say, the 1970s, a time of hyper-amendments, and where the “Imperial Presidency” had already emerged?
How then was it possible to write a constitution that seemingly stands against the interests of a political elite whose ideological origins (and for some, biological origins) can be traced to the 1960s, and who were still in power in 2010 and still are? How were Kenyans able to protect the constitution from destruction by the political elite?
Kenya’s constitutional and legal transformation, I argue, is the outcome of Kenya’s own aggressive politics of ethno-regional coalition building, where elites claiming to represent certain ethno-regional communities have become useful in legitimising the political regime.
Put differently, the current transformations in Kenyan politics — where limits can be placed on the extent of the president’s power — are part of the contradictions inherent in the very system of elite domination that historically produced the “Imperial Presidency” under the previous constitution.
Allow me to explain using historical analysis.
The era of elite consensus
As mentioned, the ideological origins (and for some, the biological origins) of Kenya’s current political elite can be traced back to the 1960s.
The power of Kenya’s post-colonial elite to dominate the rest of the population and key sectors of the economy, and to maintain socio-economic inequalities, has best been exemplified when there are high levels of trust amongst the political elite, or essentially, high levels of elite consensus regarding the “rules of the game”.
Following Kenya’s independence in 1963, elite domination rested on the reification of Jomo Kenyatta as Baba wa Taifa (father of the nation), an alliance, or consensus of ethno-regional elites, the demobilisation of opposition forces, and the ability of those elites to reproduce their political and economic power, while precluding fundamental socio-economic reforms.
It was in this context that, from 1964 to 1992 — the year of the return to multi-party politics — the constitution was amended over twenty times. The amendments served to empower the executive branch of the government at the expense of parliament and the judiciary. At the height of this madness (in 1990), the Office of the President (OP) had a staff of 43,230, representing a ratio of 1 in 6 civil servants. The OP became a parallel government, with considerably more executive power than actual ministries. According to the BBI judgement, the constitution had been “stripped of most of its initial democratic and social justice protections” such that the country “had effectively become an authoritarian state.”
The situation was not improved by the fact that Kenya had emerged out of colonial rule with a profoundly unbalanced institutional landscape.
Parliament, political parties and the judiciary were largely underdeveloped compared to the executive and the bureaucracy. For purposes of mobilising the population for development and for political legitimacy, the ruling party — the Kenya African National Union, or KANU — was immediately replaced by the bureaucratic machinery that was directly answerable to the head of state. In fact, it was the provincial administration, answerable to the executive and with a demonstrable capacity to exercise top-down political and administrative control across the country, that was responsible for the maintenance of law and order, keeping the entire population in check, and maintaining the socio-economic inequalities that have been a hallmark in Kenya’s economic trajectory since independence.
Why was it possible for Kenyans to bequeath themselves a progressive constitution that limited executive authority in 2010 and not, say, in the 1970s?
Before the colonial government departed, it ensured that it had demobilised the Mau Mau and left the instruments of power in the hands of elites who would be sympathetic to British interests. This is why, shortly after he became Kenya’s first Prime Minister, Jomo Kenyatta — who had been declared by a colonial governor as “Kenya’s leader unto darkness and death” — rushed to Nakuru to urge white settlers not to leave the country.
Inside the smoke-filled room, Kenyatta dismissed recent clamours for the redistribution of land and wealth by many of his supporters as “young blood boiling” that he would soon quell down.
Kenyatta went on to assure his audience – many of whom had been alarmed by the impending independence – that he was a farmer like them, that they had something in common, the subtext suggesting that he was a “responsible” African leader.
These managerial arguments were not a simple placating of white settlers.
By the time Kenyatta was addressing his newly embraced compatriots in Nakuru, the colonial government had already co-opted sympathetic African elites into the bureaucracy, the legislature and the private-property-based economy. A coalition between the executive branch of government, the allies of colonialism, and representatives of global capital thus emerged, and Kenyatta was keen to deepen that arrangement. This also meant that colonial loyalists and representatives of transnational capital would come to reap the full benefits of independence. It was during this time, the late 1950s and early 1960s, that these elites not only took control of the means of production, they also assumed the political and institutional capacity to reproduce their dominance in the decades to come.
In particular, the ability of this alliance to reproduce itself over the years since independence lay in its capacity to demobilise popular forces and progressive movements, especially those elements of the nationalist movement that questioned both the social and economic inequalities of the post-colonial state. The ability to demobilise opposition forces lay in the strength of the bureaucracy that was itself beholden to the elites that had taken over the executive branch in the early 1960s.
Representative institutions, such as parliament and local governments, were downgraded and diminished. Amendments to the constitution made easy, in this context, became a sharp tool in the exercise of authoritarian power. This is why, bequeathed a Westminster-style parliamentary system of government in 1963, Kenya quickly became a republic with an executive president in 1964.
The independence constitution had also made provisions that took considerable power and significant functions of government away from the Nairobi-based executive through a system of eight regional governments of equal status known in Swahili as majimbo. By 1964, the majimbo system had been dismantled.
The ability to demobilise opposition forces lay in the strength of the bureaucracy that was itself beholden to the elites that had taken over the executive branch in the early 1960s.
With majimbo gone, the independence senate lacked rationale, and it too was abolished. Just before this happened, the Kenya African Democratic Union, or KADU, the main supporter of majimbo, had folded, citing frustration from the executive.
By abolishing the regional majimbo governments, and getting rid of the senate, the parliamentary system and the first post-colonial opposition party, the post-colonial elite pact of domination was complete.
The era of elite fragmentation
Daniel Arap Moi — whose political base was outside the central region that had dominated politics since the early 1960s — grew more and more paranoid when he became president in 1978.
First and foremost, Moi knew very well that he did not command the respect that Kenyatta had commanded as the founding father, but in addition to this, the resources that Kenyatta relied upon to reward other elites who eventually legitimised his rule became thinner during Moi’s time.
An attempted coup in 1982 poisoned the chalice, and Moi resorted to more strong-armed tactics. He began interfering with elections more brazenly, and eventually surrounded himself with a coterie of loyal political cronies who did not carry much political weight in their own regions.
With the return to multi-party politics in the 1990s, the core that had held together the elite pact of domination during the 1960s and 1970s gave way. This ushered in a period of elite fragmentation, which was combined with the instrumentalisation of ethnicity and violence in the political marketplace.
The situation was not improved by the fact that Kenya emerged out of colonial rule with a profoundly unbalanced institutional landscape.
In an attempt to maintain his grip on power, Moi resuscitated the majimbo idea in the Rift Valley, Western and Coast regions. While the majimbo idea regained prominence in these regions, its ethnically-exclusivist language engendered massive violence that targeted Kikuyu peasants and Luo workers, especially during electoral periods, in an attempt to evict them from these regions.
A brief coalition of Luo and Kikuyu elites in 2002 removed Moi from power. But the next president, Mwai Kibaki, assumed power under Kenya’s former top-heavy constitution, that which had created what we now remember as the “Imperial Presidency”. Kibaki had won the 2002 elections on a platform of constitutional reform, but differences quickly emerged in his coalition — the National Rainbow Alliance, or Narc — regarding what would be the new constitutional order.
The differences revolved around two main questions regarding the structure of government. The first question was: should Kenya adopt a presidential or a parliamentary system? The other question was: what should be the extent of decentralisation?
One of the Narc coalition’s partners, the Liberal Democratic Party (LDP) that was led by Raila Odinga, favoured a parliamentary system, but with a dual executive, that is, a president with a strong prime minister, and extensive provisions for decentralisation, that is, a three-tier system involving eight regions akin to the majimbo system of the 1960s.
The other coalition partner, the National Alliance Party of Kenya, that was led by the then President Mwai Kibaki, favoured a system with a single executive, that is, the president as the primary holder of executive authority, and a modest form of decentralisation, preferably deconcentration.
Kibaki’s group, of course, was in control of the executive branch, and as such, worked to ensure that the Bomas of Kenya draft (named after the venue at which it was deliberated), and which had provided for the system most favoured by Raila Odinga’s faction of the Narc coalition, was altered.
The Bomas deliberations had begun in the twilight years of Moi’s rule and were continued by Kibaki during his first term in office, becoming Kenya’s National Constitutional Conference, a people-led, constitutional review process. However, the draft that was presented at the 2005 constitutional referendum was not the one agreed to at Bomas.
Tampered with by the then legal advisor (the Attorney-general) of the executive branch, Amos Wako, the draft that became known as the “Wako draft” retained a powerful president and watered down the provisions on decentralisation.
Essentially, the “Wako draft” rebuffed the greatest assault on the power of the executive since Kenya gained independence.
As a result, it was defeated by a vote that was mobilised by a new coalition, the Orange Democratic Movement, the ODM, largely led by Raila Odinga, and which was named after the “No” symbol (an orange) of the 2005 plebiscite vote. Kibaki’s government became more and more alienated from the non-Kikuyu public. The seeds of the 2007 post-election violence had been planted.
Birthing the 2010 Constitution
The process of elite fragmentation that had begun in earnest during the 1980s and 1990s had exceeded its limitations by 2007. Trust amongst the political elite was at its lowest immediately before and after the 2007-08 post-election violence.
Believing that he was operating in the institutional landscape within which Jomo Kenyatta had operated in the 1960s and 1970s, Kibaki deployed the machinery of the executive to quell opposition protests against his declared victory in the 2007 elections.
The outcome was disastrous.
Over 1,300 lives were lost and more than half a million people were displaced in violence that was sparked by the disputed electoral results.
Without an alliance of elites representing Kenya’s multiple ethno-regional formations backing him up, Kibaki was forced to enter into a deal with Raila Odinga, ODM leader and his challenger during the 2007 elections.
Since trust amongst Kenya’s political elite was at an all-time low, the deal had to be brokered by a foreigner, the late Kofi Annan, former Secretary-General of the United Nations, and through it, Raila became Prime Minister in a coalition government with Mwai Kibaki as president.
Important to note – and central to this piece’s argument – is that it was within this context of lack of political trust amongst the political elite — or elite fragmentation, with one side always trying to “fix” the other — that far-reaching constitutional reforms saw the light of day, culminating in the Kenya 2010 constitution.
A marriage of convenience, with mutual suspicion and at times, non-cooperation, became the best description of the operations of the grand coalition government of 2008-2013. In short, the political elite had been forced into a weak alliance following the 2007 post-election violence – nothing to match the strong alliance of elites, and hence, elite domination, that was witnessed in the 1960s and 1970s.
The “Wako draft” rebuffed the greatest assault on the power of the executive since Kenya gained independence.
In addition, the 2007-08 post-election violence meant that the political elite had lost the moral authority to define the future political direction of the country without consulting ordinary citizens. This meant that, inadvertently, the political elite came to share the power to decide the country’s political affairs with civil society organisations and human-rights activists, most of whom were lawyers. These lawyers and activists had also taken part in the then twenty-year popular struggle for a new constitution, a struggle that begun with the re-introduction of multi-party politics in the 1990s.
The lessons and the pain of that struggle informed the strong guardrails that were placed against amendments to the harmonised draft of previous draft constitutional documents, work that was done by a Committee of Experts (CoE) appointed in 2008. At the Great Rift Valley Lodge in Naivasha, the CoE-crafted and harmonised draft was presented to a Parliamentary Select Committee of 14 Party of National Unity (PNU) members, Kibaki’s party, and 13 ODM members, Raila’s party. During the Naivasha proceedings, the PNU side was surprised by ODM’s willingness to relax its demands for a three-tier decentralised system based on eight regions in favour of devolution based on 47 counties; and to let go of the parliamentary system altogether in favour of the presidential system.
The deal that would eventually lead Kenya into a pure presidential system under the 2010 constitution, it was reported, was struck by none other than Raila Odinga and Uhuru Kenyatta, the principals of the BBI process eight years later – in a room at the lodge.
A pure presidential system in the sense that, not only would cabinet ministers be appointed from outside parliament, but the losers of the presidential election, no matter how many votes they garnered during an election, would not be accorded any public office. The Naivasha draft, presented to parliament for debate in mid-2010, also scrapped the regional tier of government, and fixed the number of parliamentary constituencies at 290. Given the strong parameters that had been placed by the CoE process to changing the draft in parliament, nothing much changed after that.
Of course, the electoral experience of 2007 had shown both Raila Odinga and William Ruto — the leading ODM politicians at the time — that they too, could ascend to centralised power by becoming president directly through the ballot, and not through control of regional governments, or by having to go through parliament. In light of this, they abandoned the clamour for majimbo and for the parliamentary system.
The proposed 2010 constitution was good to go. The political elite, believing that it would be a useful tool in the waging of their battles for power, did not raise major questions around the structure of the executive and decentralisation. As a result, the 2010 constitution was adopted through a popular vote in a referendum in August 2010, and was promulgated shortly thereafter.
The first disappointment, at least for Raila and his supporters, arrived in 2013.
Raila Odinga lost the presidential election by a slight margin under the 2010 constitution to a new (Jubilee) alliance led by Uhuru Kenyatta and William Ruto. This was repeated in 2017, when Raila again lost to Uhuru amidst reports of irregularities during the transmission of results.
Despite his considerable political influence over vast swathes of the country, Raila held no public office between 2013 and 2017. In 2017 he had successfully contested Uhuru’s presidential victory at the Supreme Court and proceeded to boycott a repeat poll, citing lack of a competent and impartial electoral commission.
Two months before the two leaders met and shook hands on the steps of Harambee House, launching the BBI as a result, Raila had also made real his threat to take a symbolic presidential oath in defiance of Uhuru as the “people’s president”.
Meanwhile, 76 people, including ten children, had died during opposition protests by the time Uhuru was sworn in for his second term as president. Pressure from civil society organisations and the international community to find a political settlement was piling. A debt-burdened economy was threatening to stall. Uhuru, like former President Mwai Kibaki before him, was probably worried about tarnishing his own legacy.
It was within this context of lack of political trust amongst the political elite that far-reaching constitutional reforms saw the light of day, culminating in the Kenya 2010 constitution.
It was in this context that the BBI process came about — to create additional positions within the executive so as to accommodate, essentially, more ethno-regional elites that, as Kenyan history has shown, are often useful in legitimising a political regime.
In sum, one could argue that the BBI proposals were, and still are, meant to curb the excessive elite fragmentation that has marked the country’s political history since the 1980s and 1990s in order to produce the elite pact of domination that existed during the 1960s and 1970s.
In fact, before the Constitutional and Human Rights Court complicated the BBI process by declaring it unconstitutional and null and void, the BBI report had yet again tightened control around the presidency. If successful, the president would get to appoint a prime minister from parliament, who will also be the leader of the largest political party or the largest coalition of political parties. The president will also appoint two deputy prime ministers and cabinet ministers drawn from within and outside parliament. The report had also recommended the disbandment of the National Police Service Commission and the creation of a National Police Council to be chaired by a cabinet secretary, that is, a presidential appointee. It had also established the office of an ombudsman within the Judiciary, to be appointed by the president.
As Uhuru Kenyatta and his allies continue to wish for the return to a more “orderly” past, where a few individuals with disproportionate political and administrative power could decide the fate of the entire country, it would be to their advantage to know that that system of elite domination carries inherent contradictions.
The more the political elite expands, the more we shall witness fragmentation within its ranks.
As this piece has shown, at its worst (and as was the case during the post-election violence of 2007-8) elite fragmentation births legal and institutional transformations, such as the 2010 constitution. Put differently, the more the political elite becomes busy fighting amongst itself for resources at the disposal of the state, the more constitutional transformations the country will see.
The more the political elite expands, the more we shall witness fragmentation within its ranks.
In my view, the BBI judgement, the current limitations placed on the president and the executive by the constitution, the restiveness within Uhuru’s political base, and the associated political realignments in the run-up to the next general elections in 2022, should all be understood within this framework.
Article by- Ngala Chome
This article is part of The Elephant BBI Judgement Series done in collaboration with Heinrich Böll Stiftung (HBF), Dialogue and Civic Spaces Programme. Views expressed in the article are not necessarily those of the HBF.