Miguna Miguna: Kenyans Want Hybrid System in New Draft - The Star

Media reports of utterances by politicians indicate that there is confusion and a grave misunderstanding on the system of government we have.

There have also been false claims on what the majority of Kenyans purportedly want.

Contrary to a myth being propagated by those who have exploited the existing schizophrenic system; the system we have in Kenya is not presidential. Although it has parliamentary roots, due to numerous mutilations under both Jomo Kenyatta and Daniel arap Moi, the current constitution is now a full-blown mongrel with no singular genetic trait.

Because it is neither parliamentary nor presidential, the essential ingredients that distinguish one system from the other are missing; even the benefits of either system cannot accrue to the people of Kenya.

Many people believe, wrongly, that a system is presidential when the head of state and government is called a President. This is not an argument one would want to have with people who have more than basic education.

Unfortunately, it is a debate that has been , forced on us and which we can only ignore at great risk to the future of this country.

In South Africa, for example, the head of state and government is called a President even though the system — from top to bottom — is a federal parliamentary system. South African Presidents assume office when their political parties win majority seats in Parliament.

No one votes directly for the President and MPs. Parliamentary seats are allocated to parties based on the overall performance of each in the General Election. Yet, we have never heard complaints that the mandate the South African Presidents derive from winning majority seats in the elections is inferior to the so-called "directly" elected people.

In Kenya, the basic system of government is actually parliamentary. MPs, including presidential candidates, are required by law to contest parliamentary seats.

At independence, the head of state was the Queen whose representative, the governor-general, acted in her absence. The head of government was a Prime Minister who assumed that position by virtue of being the leader of the political party with majority seats in Parliament. Both the head of state and government derived their mandates and legitimacy differently. The method of assuming office does not determine the functions, responsibilities and privileges of each office.

When Kenyatta repeatedly mutilated the independence constitution in order to merge the functions of "state" and those of "government" in one office, which he chose to call the "presidency", he created a mongrel. The mongrel he created was at the executive level with no corresponding or accompanying structures, institutions and laws that would ensure accountability.

Sadly, Kenyatta did not stop the demolition of the structural foundations of a parliamentary system; he went out of his way to weaken and eventually emasculate both the legislature and the judiciary. As a result, the checks and balances that are necessary in a presidential and parliamentary systems were destroyed.

Therefore, if our intention is to construct a modern democratic system; a system that respects and upholds the constitution, the rule of law and human rights, then we must craft new edifices, structures and institutions to entrench it.

We must craft a system that disperses, decentralises and decongests power from the centre. The starting point must be with the clear separation of "state" and "government" functions.

A question has been asked why one would go around the country looking for votes and then cede executive authority to another person elected through a different method.

Firstly, one would voluntarily decide which office to seek. If one believes that the functions of a head of state or a head of government are not commensurate with the task of seeking votes — directly or otherwise — one would be free not to seek that office.

Secondly, it is the constitution that will allocate functions to each office. And since the constitution is the supreme law, everyone must comply with its provisions.

Thirdly, executive functions are not only in the running of government affairs. Executive functions are exercised daily by the head of state as commander-in-chief, in making diplomatic appointments and by state functionaries and constitutional office holders, among other things.

Most Kenyans support the hybrid system prescribed by the Committee of Experts.

However, for it to work, particularly at the executive level, functions of state and those of government must be clearly delineated. If one person is allocated the function of being head of state and government, it would be difficult to convince many people that, at least at the executive level, the system is a hybrid. The retention of the current mongrel system is not an option.

The author is the Prime Minister's adviser on coalition affairs.

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