The single public issue that grabbed the attention of most people in Kenya over the past week was on the presidential term limits.
This arose after a legislator suggested that there was need to consider an amendment to the Constitution of Kenya to remove the limitations on the number of times a person may seek and be elected to serve as the president.
In the mind of the legislator, the limitation of a maximum of two terms would be too short and may shortchange the country in the case of a particularly good president who could be willing and able to serve in that office.
Whether or not the legislator intended to evoke debate on this, one issue was clear – that there may yet be a lack of understanding on the reason for consensus on the issue of presidential term limits in Kenya.
But what needs to be said is that limited term limits for a head of state is not a new issue but is taken as an important cornerstone of the republican constitutional structure.
It goes as far as two centuries ago, when the United States constitution was being debated prior to its adoption in 1789.
James Madison argued in the Federalist papers that a key distinction between a republic as opposed to a monarchial form of government was that in a republic, self-governance is not only established by election rather than heritage but that the governors derive their legitimacy and existence from the people and that such authority is not lifelong but for only a limited period of time.
This would be one of the constraints to tyranny that had otherwise shown itself in the lifetime monarchies that were back then prevalent all over the world.
This issue of limitation of presidential terms limits was so well established as a constitutional edict and practice that the first president, George Washington, chose not to seek a third term despite the fact that the US constitution did not have term limits at this time.
In fact, no American president sought more than two terms after this, until Franklin Roosevelt got elected for a fourth term in 1944 and died before he completed it.
It is said that part of the reason president Franklin Roosevelt got way with seeking more than two terms as president was that he was a war president – Second World war – and the overall public sentiment in the country may have thought it imprudent to engage in divisive presidential politics at the time.
Even then, president Roosevelt’s opponents in the elections always made this an issue in the presidential campaigns.
As a result of this, the United States passed the 22nd Amendment of the Constitution in 1951 and the presidential term limits were fixed at two terms by law.
Since then the term limits have been by force of law, even for popular presidents like Ronald Reagan, who on leaving office thought the amendment may have been an unfair limitation on the electoral choices.
In the United Kingdom, there is no limit to the number of terms that a prime minister as head of government may serve.
This is mainly because the design of the executive arm of government is divided between the monarch as head of state and a prime minister as head of government.
The former is hereditary and serves for life upon accession to the throne and the former is elected as leader of the party or coalition with the majority in the House of Commons.
Therefore, legally speaking, there is no term limit for a British prime minister and indeed the Prime Ministers of many other countries such as India, Australia or even Israel.
That is, the length of their tenure in those offices is based on the approval by the electorate in giving their parties majorities in parliament and the continued faith of the members of their parties in their leadership.
Even then the parties often manage the length of the prime minister’s term in their internal politics. That is why Margaret Thatcher once attracted some angst from members of her own party when she made a statement that she “would go on and on as long as” she could, which she did until she was replaced by her party.
In Britain, William Gladstone carries the unmatched record of having served four terms as prime minister in the 19th Century.
In this regard, several countries have come up with permutations of limitation of terms of the president.
These vary from say, Chile and Panama, which provide that the President may serve two terms but they must be non-consecutive, which means there has to be a break between the terms.
In other words, an incumbent may not seek re-election while serving in office.
Mexico, Israel, Armenia and the Philippines have a single term of between six and seven years, meaning that the president may not seek re-election.
In Africa, the situation is a mixed picture. Cameroon and Gabon have unlimited terms of seven years for the president while Nigeria, South Africa and Ghana limit the president to two terms.
In Nigeria and Ghana, the term is four years while in South Africa, the terms are five years each.
Uganda and Rwanda initially had constitutions that prescribed term limits for the office of president but amended their respective constitutions by referenda and removed the limits for president.
In Kenya, the presidential term limit is a unique issue of long constitutional history.
The presidential term limits were first introduced in 1992 as the twin-edge of the amendments that introduced multi-party democracy. This was reiterated by the Constitution of 2010 when the presidency was limited to two terms of five years each.
In fact, a reading of Kenya’s constitution has a curious provision that indicates the attitude of the citizenry to the democracy ideals of the republic in ensuring limited terms for the office of the president.
It states that a person who assumes and serves more than half of the presidential term of another president, following either resignation or removal shall be deemed to have served one full term and shall only be entitled to another full five-year term.
This unusual limitation is very indicative of a citizenry so conscious of the need to limit the period for which a person serves as president, whether elected or by assumption following the exit of an elected president.
Against this, one may ask: what is the constitutional benefit to the public of limited terms for a head of state? Constitutional law classes cite this time-honoured reason, which was given by Alexander Hamilton – again in the Federalist Papers – while the debates on the US constitution were being waged over 200 years ago.
He said in response to people who wanted an unlimited term for president: “A man acting in the capacity of Chief Magistrate (that is the president), under a consciousness that in a very short time he must lay down his office, will be apt to feel himself too little interested in it to hazard any material censure of perpetuity, from the independent exertion of his powers, whether from the larger society in general or in a predominant faction in the legislative body.”
Alexander Hamilton and James Madison could have been speaking of Kenya and especially legislators all those years ago. We would be wise to heed them.
