Presidents and Constitutions [opinion]

You may have heard it said that Kenya has an American-style constitution, at least when it comes to the system of government. Certainly, when the MPs at Naivasha suddenly changed the system recommended by the Committee of Experts in 2010, they seem to have thought they were adopting a US-style system. They proposed that a Presidential candidate should have a “running mate” (Deputy President if the Presidential candidate won); and there should be a leader of the majority party and of the minority party in the National Assembly. The head of government should not be a Member of Parliament. And he or she should be removable by impeachment – not by a vote of no confidence.

This was a change from the Parliamentary systems recommended by the Constitution of Kenyan Review Commission, 2003, the Bomas constitutional conference, 2004, and the Committee of Experts in 2009 and 2010. The motive was to move away from what the then leader of the opposition, Mwai Kibaki, called the “Imperial Presidency”, and from a history of autocracy. And there was a belief that a Parliamentary system is more collective or collegial form of government, and better for a multi-ethnic society. But leaders who believed they had a chance of becoming President abandoned their reservations about Presidential systems at Naivasha.

As President Obama visits Kenya, it is interesting to ask: how similar is the constitutional position of the President of the US to that of the President of Kenya? Particularly, perhaps, when Obama is facing huge challenges and accusations of acting unconstitutionally.

In reality the two Presidents are constitutionally (and politically) different in many ways, and on the whole the powers of President Kenyatta are more limited than those of Obama. It is the relationship of head of government (whatever his or her title) to the legislature (Congress or Parliament) that really distinguishes a Presidential system of government from a Parliamentary one (and the CKRC, Bomas and the CoE in its first draft recommended a Parliamentary system).

Aura of absolutism

The aura of absolutism of the Presidency in Kenya has gone, or should have gone. The President is, like everyone else, under the constitution. The same is true of Obama. Each President swears, on taking office, to “preserve, protect and defend” the constitution – Kenyatta also promised to “obey”.

Neither President can hold office for longer than two terms. This limit was formally introduced into the US only in 1947, though in reality only one President ever served more than eight years. Kenya introduced a limit when multiparty democracy was reintroduced. The motives are similar – to prevent elected Presidents from becoming like monarchs or even dictators. In fact Kenyatta has the potential for a longer period in office because Kenyan elected terms are for five years.

Politically the Kenyan President may be in a stronger position than the American. In the US the cycle of elections makes it likely that for part of his or her term, a President will not have the support of a majority of legislators. There is an election for members of the House of Representatives (equivalent of the National Assembly) in the same year as the Presidential elections. But halfway through the Presidential term of four years, the House of Representatives is again elected. Senators each serve six years, but there is an election for one-third of them every two years. So for the second half of a Presidential term, a President may have to deal with a hostile House, and may never have a majority of Senators from his own party.

But in Kenya, President, members of the National Assembly and senators are all elected on the same day, making it much more likely that a majority in each House will be from the President’s party (or coalition). The MPs at Naivasha did not plan it this way – they wanted the Presidential election to be three months after the Parliamentary, but the CoE changed this. Negotiating with a legislature that is dominated by the same party is a very different proposition from doing so with a hostile one. In theory, Kenyan legislators should be very reluctant to disagree with their party because they may lose their seats. In the US party, discipline is not strong and the President has little power to influence the career paths of Congress members. On the other hand, because politics in Kenya are largely tribal, Presidential candidates have to team up with a party with its support in another community, offering the post of the “running mate” to its leader.

Appease his home supporters

But the loyalty of the other party cannot be counted on, as the President has in the first place to appease his or her home supporters. This is precisely the dilemma that Uhuru has to contend with now, considerably weakening his hold over Parliamentarians. On the other hand, sometimes the two systems seem not so dissimilar. We know that Kenyan MPs seem often to put themselves up for auction. In the US they call it pork-barrelling – Congress members don’t get given brown envelopes; but benefits for constituencies of supporters are often written into laws.

While Obama is the executive under the US constitution, Kenyatta is part of the executive, which includes the rest of the Cabinet, and he exercises authority “with the assistance of the Deputy President and Cabinet Secretaries” (Articles 130 and 131).

Kenyatta has far less of a role in appointing judges than a US President (appointments to the US Supreme Court are openly political). But he seemed to find a way to interfere with appointments by failing to approve High Court appointments for a long time although his role is supposed to be purely formal. Cabinet members, ambassadors and certain other posts such as head of the police and military are made by the President with the approval of legislators in both countries. In neither is approval to be taken for granted – remember Monica Juma? But how far are Kenyan MPs motivated by the national interest, rather than the personal?

Obama has been criticised for using the 2001 Congress resolution approving attacks on perpetrators of the 9/11 attacks as justification for attacking Islamic State in Iraq and Syria – completely different situations. “His assault on the rule of law is a devastating setback for our constitutional order,” said a distinguished law professor. He has been attacked for preventing the use of properly passed laws, including the prosecution of criminal offences, if he dislikes the law. One writer asked: “Can a President effectively repeal the environmental laws by refusing to sue polluters, or workplace and labour laws by refusing to fine violators?” Obama has sent the recent Iran agreement to Congress, but has been reported as determined not to allow Congress to stand in its way (he has a veto over Congress resolutions that can be overridden by two-thirds). Of course the situation is often complex, and politics come into the critiques.

Declaration of war

What would happen in Kenya? The Kenyan President is supposed to have the National Assembly’s approval to any declaration of war. But what is a declaration of war? Kenya invaded Somalia when the old constitution was in force. But how long can we continue Kenya’s involvement under the new constitution? And what has happened to the constitutional requirement that the Defence Forces “(c) may be deployed to restore peace in any part of Kenya affected by unrest or instability only with the approval of the National Assembly”?

The Director of Public Prosecutions in Kenya is supposed to be independent. He or she “… shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.” The DPP can decide not to prosecute (but there would be limits to the discretion); no-one else can tell him not to – not even the President.

The Kenyan constitution does not require international agreements to get Parliamentary approval (though a 2012 Act does).

Both Presidents have been accused – and with some justice – of ignoring, or riding roughshod over, the legislature. Let us hope they did not spend their time comparing notes! But Uhuru could learn something from Obama’s efforts to negotiate with Congress, for example, over the Affordable Health Care law and over the Iran deal (back in April, the White House and Congress agreed on a way to approach approval of any deal with Iran). Both constitutions work well only if different branches of government know when to be firm and when to cooperate.

The authors are the directors of the Katiba institute