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Kenya: Necessary Changes we Need!

By Matunda Nyanchama

October 10, 2017

I am writing this on what would be Moi Day had the Constitution of Kenya (2010) not eliminated the day from our national holiday calendar. It is also a time of apparent stalemate following the nullification of the August 8th, 2010 Presidential Election. As plans go, the repeat Presidential Election is scheduled for October 26th, 2017 by the Independent Electoral and Boundaries Commission (IEBC).  Elections will come and pass but there are changes we must contemplate to make exercise of power in Kenya a lot more accommodative. And  the answer lies with the so-called nusu mkate government with inclusion and fair represent ion as the basis. We also need to protect independent entities such as the Judiciary and the National Audit Office.

I’ll explain.

The Constitution of Kenya (2010) has been praised as one of the most progressive constitutions of modern times. It entrenches devolution, embeds checks and balances between the three arms of government, affirms a number of rights as enshrined in the Bill of Rights, among many other progressive attributes such as national values and the entrenchment of ethical leadership.

As progressive as it is, the constitution can be improved to take care of our realities. Consider this as far as executive power is concerned.  A coalition (or party) that gets 50% plus one vote ends wielding 100% of executive power. Of course this is a major improvement over the previous constitution that saw former President Daniel Arap Moi once elected with 36% of the vote and ended up with100% of political power.

That said, in a country where wielding power can transform fortunes for one and those of his/her cronies, the fight for power is a do or die situation. It is no wonder that elections are fought over with such passion, accompanied (in some cases) with violence. Some contenders take extreme measures as a means of winning. Candidates cheat, bribe, cajole, threaten, etc. knowing well that the end justifies the means. And in many cases, they get away with it: winning by any means necessary, as it were.

The situation is compounded by our ethnic composition and attendant polarization where the winner-take-all can permanently exclude whole ethnic groups from the ‘eating table’. Those in the losing alliance (despite commendable performance in the elections) can end up permanently in the political cold. Such exclusion inevitably breeds resentment and could lead to intolerance and possible rebellion.

To cure this malady, we need executive power apportioned proportionate to the popular vote. Here, the winning coalition will get the presidency. However, cabinet positions will be distributed based on the popular vote attained by participating parties. An agreed upon minimum threshold will determine which parties qualify to nominate candidates to cabinet.

Here is my contention: the much derided nusu mkate government is the way forward if we need to assure inclusion, avoid resentment and forestall rebellion.  (By the way, we really need to change the language in our national political discourse here. The term nusu mkate suggests ‘eating’ yet leadership should be about public service. Ideally, our language should be about national service and servant leadership where effective service is the reward. Public office should not be a means for personal enrichment, patronage and cronyism.)

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We also need to do more to protect other crucial independent institutions like the Judiciary and Kenyan National Audit Office. Both the Judiciary and office of the Auditor General are sometimes seen in adversarial terms by Executive and/or the Legislature. Indeed, there have been impatient utterances regarding many rulings from the Bench, especially where either the Executive or the Legislature differ in the interpretation rendered by the Judiciary.

The starkest of them all followed the nullification of the August 8th, 2017 Presidential Elections. Following the ruling, we have seen open expression hostility directed at the Judiciary with promises to “teach them a lesson”. As if to bring the threats to fruition, the Executive has recently cut ties with international organizations that have helped with building capacity in the Judiciary.

The National Audit Office has also we have also seen similar threats directed at the Audit Office, including the office holder. Other threats have come in form of budget cut to diminish the capacity with which the office can carry out its mandate.

The constitution anticipates strong, independent institutions as a basis for collective national good. On this basis then institutions such as the Judiciary and National Audit Office should be protected from predatory tendencies of the Legislative and Executive. Accordingly, we need to have it in the law (indeed in the constitution) that guarantees a budget/resource threshold for these institutions. We need changes in the law that establish the Judiciary budget as an agreed percentage of the national budget. The same for the National Audit Office.

 

Dr Matunda Nyanchama is an IT consultant and book publisher. He can be reached at matunda@gmail.com.

 

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