The Americanization of the Kenyan Constitution: Will It Change Anything?

Kenyans rejoiced on Friday, August 27; their long struggle for a new constitution ended, as President Mwai Kibaki, watched by Prime Minister Raila Odinga, his presidential rival in 2007, approved the new document at a ceremony in Nairobi’s Uhuru Park.  Kenya’s politicians and civil society advocates have struggled to secure a new constitution for nearly a quarter of a century, seeking to reduce the powers of an imperial presidency entrenched during the long years of single-party rule first under President Jomo Kenyatta and then President Daniel arap Moi.  The new constitution was approved by two-thirds of those who voted in an August 4 referendum, securing landslide approval in Northeastern, Nyanza, and Central Provinces, while being rejected only in Rift Valley Province, the political bailiwick of former President Daniel arap Moi and William Ruto, current Minister of Higher Education and probable presidential contender in 2012.  The new constitution has been widely praised by civil society leaders in Kenya and overseas, hailed most notably by President Barack Obama, Vice-President Biden, and the U.S. Department of State. 

It is hard to begrudge Kenyans their celebration, particularly given the paroxysm of violence and vituperation that engulfed the country in the aftermath of the 2007 election. But it is far from certain that the new constitution will fundamentally change the ethnic rivalries endemic in the nation’s political life or change Kenyan governance for the better.  Three doubts arise.  The first is whether the new constitutional framework, inspired by the U.S. and South African systems that emphasize strict separation of powers, is best suited for the realities of Kenyan political life.  Secondly, electoral reform, which is not addressed in the new constitution, may ultimately be the key to resolving the ethnic calculus that has so divided the nation.  Finally, the most intractable challenge is the need to transform the country’s political culture and to create a climate of free and open debate on policy issues. 

Immediately after independence, Kenya abandoned its federal, Westminster-style system for a centralized Westminster model with more and more power lying in the Office of the President and its emissaries in the districts in the provincial administration.  With the resumption of multi-party politics in 1991, the country adopted direct presidential elections and a hybrid system, combining presidential and parliamentary elements, a model which has been much criticized.  Clearly, the Kenyan presidency as constructed by Jomo Kenyatta in 1964-67 and adapted by Daniel arap Moi in 1991-92 was too powerful.  The presidency controlled the legislature and manipulated the judiciary, which it appointed.  Supported by the Provincial Administration, a hold-over from the colonial era, which acted as the eyes and ears of the Office of the President down to the sub-location, bypassing the authority of elected Members of Parliament and local elected officials, the Presidency’s tentacles spread to all parts of Kenya.  The old system provided few checks on the power of the executive.  The ministerial system, following the formation of the coalition government in 2008, also became far too bloated, too expensive and inefficient. 

There is much to welcome in the new constitution, especially its commitments to equal political, social and economic rights.  The autonomy of the judiciary is to be guaranteed.  Many functions are to be devolved to the 47 new counties rather than concentrated in Nairobi and it looks as though the Provincial Administration will be abolished.  In theory, this looks good.  But will the new constitution work?  Will it fix the fundamental problems of patronage and corruption?  Will an American-style strict separation of powers structure that creates checks and balances between the executive, the legislature and the judiciary work in Kenya?  The model has not worked well in Nigeria or in Sierra Leone.

A strict separation of powers system could prove catastrophic in one of two conflicting ways.  First, the executive could remain the central focus of development spending and planning, and hence the focus of political pressure, while the legislature decays into political irrelevancy as happened in many of Africa’s francophone National Assemblies in the 1970s and 1980s. Alternatively, the legislature might assert its authority and block essential proposals from the executive – a scenario which perhaps is all too likely if the presidency and the legislature fall into the hands of rival political parties or coalitions.

By eliminating the appointment of Cabinet Ministers from within parliament and relying on technocrats rather than politicians, the Kenyan presidency in the future may become even less answerable to the wishes of the electorate while the legislature/parliament sinks into irrelevancy.  Kenyan MPs are not U.S. Senators or Congressmen; the system of parliamentary committees is but new and weak.  Individuals become Members of Parliament, after expending vast sums of money, not to preside over Select Committees but to become ministers and to deliver development schemes—new roads, schools, and clinics—to their constituents.  Kenyan politics is about patronage and clientage; politicians provide development and are rewarded with their constituents’ votes.  But national development needs to be directed by a strong executive if it is not to get out of hand and wasted in a sea of corruption.

Kenyans, if they are to press ahead with rapid development, need a resolute and responsive government with a determined development agenda, a government able to push legislation through parliament, led by a politically-involved prime minister (even if he/she is called president), operating in a reformed Westminster system, under which the executive would be subject to careful scrutiny by powerful opposition-chaired Select Committees.  The old unmodified Westminster system of the 1960s will not suffice.  But an executive presidential system is ill-designed for Kenya—and Africa in general—where political co-optation and bargaining is the key to ethnic co-optation and political management.  Strict separation of powers is likely to lead to conflict and controversy and corruption as the legislature seeks to contain or control the executive. 

Much has been made of the devolution of power to the 47 county councils, especially as the empowering of the counties dissolves the powers of the ethnic blocks at provincial level. But historically, local governments have been an abysmal failure in Kenya, mired in even greater corruption than the center.  Indeed, the main reason that the office of the president acquired more and more power over time was that local government, even the City Council of Nairobi in the 1980s, proved incapable of delivering essential services.  Thus, education and housing became ever more controlled by central government and the presidency.  Kenya is much more developed than it was in the 1960s, when local government authorities last possessed real power, but the recent performance of Kenya’s local councilors and local council officials does not bode well for the future.  We should expect a host of scandals, contract disputes, and failed development schemes over the next decade—if the system survives that long.  The area where the new constitution makes the most sense is in safeguarding the autonomy of the judiciary, which since independence has been a tool of the executive.

Ultimately, however, reform of the electoral system may prove more important than a new constitution.  It is the electoral system which determines how the votes of electors will be translated into representatives in the legislature.  Different systems produce very different outcomes, creating very different styles of political behavior and attitudes towards coalition-building.  The maintenance of the current winner-take-all, first-past-the-post, system under the new constitution does not bode well for the emergence of a power-sharing system that is needed to overcome Kenya’s ethnic cleavages and to create an effective legislature, which can act as a responsible check on the executive.

Kenyans also need to concentrate much harder on creating a vibrant political culture, one built on a healthy respect for each other’s civil and political rights.  Civil society since 2008 has begun to think hard about this vital issue and important work is being done by John Githong’o and Maina Kiai, among others, who are listening to the grassroots.  This is important work.  No constitution will protect Kenyans against the over-mighty state or from each other unless it is grounded on a vibrant and respectful political culture.  There are positive signs that the rising generation of politicians and voters will be more issue focused and less motivated by considerations of ethnicity and patronage.  The increasingly politically active middle class and business community will be important forces in encouraging the emergence of such cross-cutting interest groups.

Unless it is founded on this essential base, the new constitution may well prove impotent, disappointing Kenyans’ expectations. Kenya needs a political structure that encourages a dynamic executive, a questioning but collaborative legislature, a judiciary that is independent and assertive, all based on a strong and empowering political culture.  In many matters the new constitution is an improvement on the old order.  As noted above, the deficiencies of the State House presidency that emerged in the mid-1960s, were evident for all to see by the mid-1980s when Kenyans began their long struggle for constitutional reform.  But it is far from evident that the new constitution, currently so heralded, will prove the answer to their labors.  The constitution alone cannot do all the work that Kenyans seem to be expecting of it; and this constitution, created in the image of the American and South African constitutions seems ill designed to cope with the tasks that it will have to perform.  In ten years time, we shall have a better idea of how it has worked. The Lancaster House constitution, so carefully crafted at three constitutional conferences and the focus of intense political debate in Kenya from 1960 to 1963, was barely worth the paper that it was written on and was thrown into the garbage bin of history by President Kenyatta.  Let us hope that this new one fares better.

For the last 25 years, Kenyans have asked themselves, “What kind of constitution do we want?”  But was this the right question?  Rather, the questions that Kenyans should have asked themselves are “What kind of government do we want?”, “What do we want our government to do?” and “What kind of political system do we need?”  These questions, I suggest, might have produced a very different set of answers.  The new constitution seems unlikely to do much to change Kenya’s political culture with its focus on “big man” politics, patronage, corruption, and ethnicity.  These are the country’s real problems.  It seems all too likely that political practice will continue as usual despite the new constitutional dispensation.   

Dr. DAVID W. THROUP has been a senior associate with the CSIS Africa Program since March 2001. From 1994 to 1998, he served as senior research officer for Africa at the Foreign and Commonwealth Office in London, where he was responsible for providing political analysis for 20 countries in East and West Africa. He is the author of The Economic and Social Origins of Mau Mau (Currey, 1987) and of Multi-Party Politics in Kenya (Currey, 1997) and the editor of 12 volumes on the history of southern Africa between 1820 and 1914.