By: PETER KAGWANJA
On October 29, 2015, the Raila Odinga-led Coalition for Reforms and Democracy (Cord) went to the High Court, challenging the powers of President Uhuru Kenyatta in law-making under the new constitution.
On face value, Cord’s decision to seek the court’s interpretation and ruling on the extent to which the President can exercise his power to sign, veto or make reservations on legislation passed by the National Assembly may appear innocuous. It is not.
Odinga’s recent political blitz against Kenyatta comes through as a throwback to the defunct campaign against the omnipotent “imperial presidency,” now gone with the wind.
In its stead, we have what critics have, nostalgically, decried as a weak presidency.
Why, then, would Cord want to debilitate the presidency further?
The answer lies in the 2017 power strategies.
As a lawyer friend once quipped, a legal suit is 25 per cent law; the rest is strategy.
So, what thinking is driving Odinga’s new legal offensive?
The Odinga-led coalition has given three interlinked reasons.
First, and philosophically, President Kenyatta’s actions to reject Bills from Parliament are in breach of the doctrine of separation of powers and a usurpation of the powers of the legislative branch, both the National Assembly and the Senate.
Second, he has exceeded the powers conferred upon his office to refer bills back to Parliament for reconsideration under Article 115 (1) (b) of the Constitution.
Third, and more populist, the proposals by the President were against the rights of Kenyans to enjoy their retirement benefits, which has abridged the rights of individuals seeking to hold political offices.
But more significant is the end state of Odinga’s legal suit: a declaration that the President’s role is limited to making reservations, “but not sharing legislative duties through his own amendments or insertion of fresh clauses to what has been passed by Parliament”.
Ironically, neither the National Assembly nor the Senate think that the President is usurping their powers.
When Cord reportedly took up the matter with National Assembly Speaker Justin Muturi, he ruled that the President is not prohibited from making his reservations or recommending proposals. Cord dismissed Muturi’s counsel.
Be that as it may, Odinga and Cord appear to be pursuing three strands of a grand political strategy.
The first strand — a give-a-dog-a-bad-name-and-then-kill-it ploy — seeks to buttress Cord’s party line that the government is turning dictatorial and clawing back on the freedoms and principles, on which the new constitution is hoisted.
In this regard, Cord has invoked Montesquieu’s doctrine of separation of powers to make the point that the President is “invading” the independent powers of the legislative branch. But is this claim valid?
Kenya’s experience in the last two years has revealed that although the American President is frequently referred to as “the world’s most powerful person,” this is more hyperbolical than actual.
Under the pure presidential system, the constitution ties the president down as to what he can and cannot do.
To this end, the American Constitution explicitly assigns to the president the powers to sign or veto legislation, which are inviolable by either the judiciary or legislature (or even a rogue opposition).
However, in the face of growing judicial activism, the presidency in Kenya faces a real risk of losing its remaining powers and becoming a rubber stamp to the other branches.
Moreover, a weak presidency is unlikely to steer a developmental agenda to enable Kenya to join the league of Indonesia or Malaysia as a middle-income economy.
THE CHANGE OF NARRATIVE
This realisation is feeding undercurrents of nostalgia for the the “strong” executive of the past typified by the fusion of powers in parliamentary systems such as Britain’s and the semi-presidential system in pre-2010 Kenya.
Sitting at the apex of a highly centralised political machine and a greatly integrated and vastly more powerful administrative machine, the lavish powers of the Prime Minister include the power to appoint, reshuffle or dismiss cabinet ministers, appoint top civil servants, ambassadors, bishops and judges and to terminate the life of a government and call a general election.
Odinga’s own position has swung like a roller-coaster from supporting a parliamentary system before 2010 to campaigning for an American-style presidential system during the 2010 referendum.
“We need a strong presidency to carry out the reforms we are pushing for,” an Odinga adviser told a seminar in Washington in 2009.
This was at a time when it was almost a foregone conclusion within the ODM think-tanks that Odinga was the next president after Kibaki.
As a co-principle in the power-sharing government, Odinga was, for all intents and purposes, the incumbent.
And with very few exceptions, “incumbents in Africa don’t lose elections.” 2013 changed all this.
ODINGA’S LONG SHOT
In the corridors of Jubilee power, Odinga is seen as having gone to court with the hope of soaring up his economic fortunes to finance his political machine.
For the first time since 1997, Odinga is out of government and without the income and lavish benefits of being in power.
In this context, perhaps the most painful of the nine Bills Kenyatta has rejected is the Retirement Benefits (Deputy President and Designated State Officers) Bill, 2013.
This would have given millions of shillings in pensions to the former Prime Minister and his Cord co-principal and former VP Kalonzo Musyoka.
Therefore, the court strategy is Odinga’s long shot into eventually getting back his “retirement” benefits.
Jubilee pundits also view Odinga’s legal blitz and recent attacks on his economic performance as a ploy to force Kenyatta’s hand to appoint him and members of his inner sanctum to the government along the lines of the 1997 Kanu-NDP model under Moi.
SOURCE: DAILY NATION