Deputy President William Ruto opposed a powerful president and appointing MPs to Cabinet during the 2010 constitutional review talks.
Mr Ruto, at the time the Agriculture minister in President Kibaki and Prime Minister Raila Odinga’s Grand Coalition Government, stressed the need for clear separation of powers as he resisted provisions to allow the president to appoint his cabinet from among Members of Parliament.
This is according to a review of official records of the Parliamentary Select Committee on Constitution Review proceedings at the Great Rift Valley Lodge in Naivasha on January 21, 2010.
Heated discussions preceded the adoption of the current structure of government, which the Building Bridges Initiative (BBI) proposes to alter to create the posts of a prime minister, two deputies and allow appointment of MPs to Cabinet.
“The principle here is to have a government that is accountable and that accountability must not be based on individuals. It must be based on institutions. That is why I am saying that for this presidential system to succeed, the executive must be separate from the legislature,” Mr Ruto said.
“Having the executive being lumped with the legislature completely undermines that system. We have a president who has executive power and then we give him another leverage to undermine the institution that is supposed to hold him to account by recruiting some of the members of that institution to the executive. That completely undermines the capacity of the legislature to hold the executive to account,” Mr Ruto argued.
The then Eldoret North MP argued the system of government at the time “had failed the test of accountability because of the weak system of checks and balances”.
“I would have absolutely no problem if we went for a presidential system. It is clear here that the president is elected by universal suffrage. There is also a clear system of checks and balances where members of Cabinet are appointed from outside Parliament and we have a clear devolved mechanism.
“We know that Parliament, left on its own and unadulterated by appointments by the President, will do a very good job in ensuring that the President does not run amok,” Mr Ruto said.
Mr Moses Wetang’ula, the then Foreign Affairs minister, said previous experiences with constitution making – the Bomas Draft, the Naivasha Accord, the Kilifi Draft and the Wako Draft that was rejected during the 2005 referendum – showed the deal breaker had been the structure of the executive.
“The direction the country will take will be determined by the political leadership. If we go out there and speak with one voice, the people will agree and follow us. If we do not, then they will be divided and throw out this process again,” Mr Wetang’ula said of the process that subsequently led to the ratification of the Constitution in 2010.
President Kibaki and Mr Odinga led the ‘Yes’ campaigns while Mr Ruto was in the ‘No’ camp, which lost in the vote.
“I think we should give Kenyans the opportunity to elect their chief executive officer directly and give a structure of executive that will give meaning to their feelings of having a prime minister around the President. I do not believe the efficiency of the system will either be reduced or enhanced by picking ministers from either Parliament or outside,” Mr Wetang’ula argued.
Then Justice Minister Mutula Kilonzo said as a pointer that the structure of government is the dearest to Kenyans, “more than 95 per cent of the submissions received by the committee related specifically to the nature of the executive.”
“The public expressed widespread concerns that the structure of the Executive in the draft is ambiguous and would be unworkable because it could lead to frequent tensions between the President and the Prime Minister, especially if they come from different parties,” Mr Kilonzo told the committee as he read sections of the harmonised draft.
A similar concern has been raised about the BBI proposal that the president should appoint a prime minister who is the leader of the majority party or coalition of parties with the majority in the National Assembly.
Questions have been raised as to whether the proposed executive structure could lead to unstable governments should the president’s party be the minority and the prime minister named from the opposition party with the most MPs.
The premier will be the leader of government business in the National Assembly who will also supervise the execution of the functions of ministries and government departments.
At the Naivasha talks, former Justice Minister Martha Karua insisted exclusion must be addressed but cautioned against creating the impression that residents of regions that had produced presidents should be locked out.
“The exclusion we are talking about should not be blamed on an ethnic group because I can hear the undertones. It is exclusion that is created by a political class. Even today, when there is a Prime Minister and President, people in Othaya eat pig food when there is hunger. So, let us come down and address this issue for the sake of all of us so that we not only address the marginal areas but also the pockets of poverty in seemingly good areas,” Ms Karua argued.
Ms Karua said she supported complete separation of powers “so that Parliament does its work and the Executive also does its work.”
“On the argument that you need ministers from Parliament to answer questions, it is actually catered for by this system. The ministers who are appointed from outside Parliament, whether they are called secretaries of state, or whatever you call them, they actually do appear before Parliament. In the United States, mainly they appear before the Congressional committees, which are very powerful,” Ms Karua added.
Then Higher Education minister Sally Kosgei, who also served as Aldai MP, told the committee how hectic it was juggling parliamentary and ministerial duties.
“I do not have the time to take care of the science and technology things that are going around the world and still retain my seat, and yet I feel Kenya as a country is not benefiting from what is coming out of science and technology. I frankly do not know how Foreign Affairs and Finance ministers in this country win elections. I hope I have convinced some of you that we ought to separate,” Dr Kosgei pleaded.
Dr Kosgei, who served in President Moi’s government as Head of Public Service and Secretary to the Cabinet, also argued against appointment of MPs to ministerial positions, saying it would disrupt Cabinet, especially on Thursdays.
She added that it was frustrating not to get a Cabinet meeting to last as long as she would have wanted on a Thursday.
“Most governments have Cabinet meetings on Thursdays - I think it is a Commonwealth tradition. Since ministers are also MPs, when they come to the Cabinet meeting in the morning and, say, there is something boiling in Parliament, they have to take off before you have dealt with your agenda,” Dr Kosgei recounted.
“It is also because of their other duties as MPs and they also answer questions in Parliament. Cabinet, for me, comes almost third on the list of my priorities. That means that the Cabinet does not meet as often as it should. If you have Cabinet ministers whose job is to be Cabinet ministers, you will have more work for Parliament,” she explained.
Then assistant minister David Musila also backed separation of powers by having the Cabinet appointed from outside Parliament.
“You have heard it from my minister for Higher Education, that it is necessary that we separate the legislature from the executive. One of the most important ways of doing so is to ensure ministers who serve in that system are not MPs,” Mr Musila said
The then Water Minister Charity Ngilu added: “I am for total separation of powers between Parliament and the executive. We should leave MPs free to legislate and ensure the implementation of what Parliament has passed.”
But Garsen MP Danson Mungatana said “Parliament should provide all the ministers to this president”.
Mr Mungatana argued a minister who had campaigned for his constituency seat was “most likely going to be more sympathetic in the application and implementation of government policy” than one who was not an MP.
The then Lands minister James Orengo recollected at Independence, the country had a federal constitution but when the Senate collapsed, “we quickly ran to a presidential system and imperial presidency”.
The Independence Constitution had a governor-general who, as the representative of the Queen, was the head of state.
At the bottom of the pyramid was a clear distinction of the executive with the head as Prime Minister.
Then on the other pyramid’s corner at the base, was the Chief Justice as the head of Judiciary and on the other corner the Speaker as the head of Parliament.
Thereafter, the Prime Minister, Jomo Kenyatta, later collapsed the functions of the head of government with the Head of State.
This led to the second phase of the constitutional history that had a triangle of power. It had the president who was head of government and head of state.
At the bottom was Parliament with the Speaker as the head and on the side the Chief Justice as head of the Judiciary.
Complaints that the president as head of government and head of state was too powerful prompted agitation for the third constitutional dispensation.
“Let us create a very strong leader of official opposition. I propose we will not have a prime minister. The head of government (President) must take full responsibility for what he does as a government with his vice president or deputy president as the case might be,” Mr Mungatana explained.
“For the leader of official opposition, let him get half the perks the president has so that we raise his bar and respect.”
The committee’s chairman Mohamed Abdikadir informed members Mr Mungatana’s proposal was essentially for a presidential system with a strong parliament, with the ministers coming from parliament.
Mr Abdikadir then took the committee through the attributes of a parliamentary system. He explained the Government can be removed through a vote of no-confidence and “therefore, it is seen as a more unstable form of government because it is up to the whims of the political parties”.
“The prime minister can be removed through a vote of no-confidence in the government or when his own party coalition removes him/her as leader of the party. So, the prime minister can be removed by the party itself as happened with the President of South Africa recently,” he explained.
In the end, the committee settled on a presidential system, a Cabinet picked from outside Parliament and a deputy president who could not be fired at the president’s whims. BBI proposes to reinstate a Cabinet of MPs, reintroduce the post of PM and two deputies.
This weekend, the MPs troop back to Naivasha for another round of constitutional talks.
