Tuesday, January 05, 2010

A Good Draft Constitution but Not Perfect! Part 2 of 3

This is the second part of my comments to the Constitutional Committee of Experts on the Harmonized Draft Constitution. See Part 1 below this one.

The Executive Powers
In the harmonized draft you propose a hybrid system with an elected president who wields state constitutional powers and a prime minister from the party with majority in parliament on whom executive powers reside. In your effort to clearly define the powers of the president and prime minister so as to avoid conflict you ultimately created a parliamentary system rather than a hybrid system. In the draft, the president has no executive powers at all. He or she is for all practical purposes a ceremonial figure. He or she has little if any influence on policy and how it is implemented. The legislative powers granted to him or her cannot be exercised without the connivance of the prime minister who heads the cabinet that must approve a legislative proposal by the president. The power of the president to assent bills also seems ceremonial as the veto powers are curtailed by allowing a lower member vote threshold in parliament. A president who is elected by the people and in whom executive powers do not reside should have veto powers which are to be exercised to influence policy and protect the interest of the people where these are disregarded by the parliament and the cabinet. In fact, I would propose providing for president to be able to present a bill directly to parliament without the approval of cabinet and where the parliament and president disagree on a law the president should refer the bill to a referendum.

In my opinion, a hybrid system makes sense where the president and the prime minister share real executive powers. The current Grand Coalition Government is a real hybrid system. In order to avoid conflict, the two principals can only act through consultation and cooperation. The existence of multiple powers should not necessarily imply conflict. The best solution in a hybrid or mixed system is not to strengthen one to the detriment of the other. Whether this is the system of government Kenyans want I cannot say. In the previous constitutional drafts, that guided you in your work on the new draft, Kenyans had not contemplated a Grand Coalition Government. Their experience with the current Grand Coalition Government may not be positive so as to persuade them to accept a hybrid system the way it is formulated in the harmonized draft.

The objective of a government is to ensure democratic rule and economic development for its people. The preference for a hybrid system stems from the fear that new democracies are likely to revert to authoritarianism. The need to redistribute executive power between the president and the prime minister therefore becomes necessary. The fear is, however, not supported by evidence. To the contrary, evidence points to so few new democracies that have actually reverted to authoritarianism.

On economic reform performance, the hybrid government seems to do well only where the president and the prime minister share real power. This is because both strong presidents and strong prime ministers exert a positive effect on the implementation of economic reforms. The ideal strategy for hybrid constitution is not the strengthening of one to the detriment of the other. Rather, the implementation of reforms will be maximized at a point in which both the president and the government have significant powers to intervene in the policy process.

Whether the country adopts a parliamentary or presidential system is inconsequential to the level of democratic rule and democratic development that obtains in a country. Both systems were adequately represented among authoritarian governments of Africa and elsewhere. Conversely, the two systems are aptly represented in successful democracies and developed economies. Each system has its own advantages and disadvantages and none fairs better than the other. The strength of one over the other really depends on one’s preference.

Efficiency, rule of law, accountability and so on are inherent in both systems. The choice for one over the other is dictated by other factors. Peculiarity of a country; culture, past experience, level of development and geographical region seem to influence the choice. Kenyans have experienced the presidential system for the last 46 years. Culturally, the presidential system is more familiar to them than the parliamentary system. Although Kenyans have had bad experiences of dictatorship under the presidential system in the past, this did not dampen their preference for an elected president going by their documented views before Bomas. As has been eloquently put by others, Kenyans want to elect their own CEO whom they can hold accountable rather than experiment with unpredictable parliamentarians and political parties. Kenyans do not trust political parties and MPs who change positions on political expediency. At the same time, Kenyans reject an imperial president who “Lords” over them.

In this regard, you were right to propose a hybrid system of government but wrong to transfer all the executive powers to a prime minister and parliament. In the past, the main problem was lack of cooperation avenues among institutions in the presidential system. The system of government Kenyans want falls in between the presidential and parliamentary systems. The executive powers should be shared between the president and the parliament in order to encourage cooperation between them. A strong president and a strong prime minister (close to the French system) seem to be the preferred solution as the pure presidential system is in the past and the future can only be left to posterity. The making of constitution is different today from the making of the constitution in 2003. Let us find solutions to the current problems of governance. So the challenge is how to strike the right equilibrium.

Check out the Final Part 3 on the representation in a devolved system tomorrow.

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