By Linda Apollo

Uhuru Kenyatta seems to be the least powerful president in Kenya’s history. At least as suggested by a number of recent developments. He has spent so much time and energy during his second term in office defending the basis of his Building Bridges Initiative (BBI). He has also had to defend his rekindled dalliance with his closet challenger for the presidency in both the 2013 and 2017 elections, Raila Odinga.

His famous March 2018 handshake with Mr Odinga is not only wreaking havoc within his own Jubilee party but has also made his political base restive. The climate of intolerance that he attempted to create, unleashing the security agencies on recalcitrant members of his party, following his alliance with the largest opposition party in parliament, the Orange Democratic Movement seems to not have yielded much for him, after all.

Irritable president

Several months following the handshake, Kenyans grew accustomed to an increasingly irritable and angry president, demanding but not quite able to command full loyalty, especially within his party. The country became used to bitter public diatribes that the president unleashed in his mother tongue, targeted at people who disagreed with or criticized his leadership. Mr Kenyatta continues to be on the defensive regarding his underperforming administration and his expensive mega infrastructure projects. He constantly distances himself from what he now describes in public as “politics”.

Now, whenever Uhuru speaks at the launch of various development projects, the president is careful not to mention his pet projects – the Big Four Agenda; affordable universal health care, food security, manufacturing and affordable housing. A dim prospect given the ravages of the COVID-19 pandemic and the disastrous economic record that preceded it.

Not only has the judiciary complicated the progress of his BBI plan, but the entire legal fraternity has been up in arms over Mr Kenyatta’s decision not to appoint six judges out of a list of 40 that was presented to him over two years ago by the Judicial Service Commission.

While the president has insisted that the six judges have outstanding integrity issues based on information he claims was provided to him by the National Intelligence Service. The newly appointed Chief Justice Martha Koome together with her predecessors, Willy Mutunga and David Marag all insisted that the president must appoint the six or disclose the evidence he claims to have against them.

Unlike his predecessors, the president has had to deal with a severely constricted space when it comes to making and swiftly implementing public policy. The requirements for public participation and the involvement of multiple players in the governance process have slowed down the wheels of authoritarian technocratic rule.

Kenyatta’s administration has also had to grapple with constant public criticism, especially when he fails to abide by the law.

Constitutional history

While focusing on the recent High Court judgment on attempts to alter the current constitution, attention is drawn to Kenya’s constitutional history since independence. The promoters of the BBI have glossed over a critical political matrix that underlines Kenya’s constitutional and legal transformation. This is to say that Kenya’s constitutional history did not develop in a vacuum and that to understand the limitations on the powers of the executive, the case for viewing Kenyan politics remains compelling.

The question still remains, why was it possible for Kenyans to bequeath themselves a progressive constitution that limited executive authority in 2010 and not say, the 1970s, a time of hyper amendments and where the Imperial presidency had already emerged?

Kenya’s constitutional and legal transformation, I argue is the outcome of Kenya’s own aggressive politics of ethno-regional coalition building, where political elites claiming to represent certain ethnic blocks have become useful in legitimizing political regimes.

The ideological origins of Kenya’s current political elite can be traced back to the 1960s. The ability of Kenya’s post-colonial elite to dominate the rest of the population and key sectors of the economy and to maintain socio-economic inequalities has best been exemplified when there are high levels of trust amongst the political class, or essentially, high levels of the elite consensus regarding the “rules of the game.”

After Kenya’s independence in 1963, elite domination rested on the reification of Jomo Kenyatta, an alliance or consensus of ethno-regional elites, the demobilization of opposition forces, and the ability of those elites to produce their political and economic power while precluding fundamental socio-economic reforms.

It was in this context that, from 1964 to 1992 the year in which we had a return to multi-party politics, the constitution was amended more than twenty times. The amendments served to empower the executive branch of the government at the expense of parliament and the judiciary.

Parliament, political parties and the judiciary were largely underdeveloped compared to the executive. Before the colonial government departed, it ensured that it had demobilised the Mau Mau and left the instruments of power in the hands of elites who would be sympathetic to British interests.

Enter the BBI

The first disappointment for the opposition leader, Raila Odinga, and his supporters came in 2013. He lost the presidential election by a slight margin under the 2010 constitution to a new alliance led by Uhuru Kenyatta and William Ruto. This was repeated in 2017 when Mr Odinga lost again to Uhuru amidst reports of irregularities during the transmission of results.

Despite his considerable political influence, Odinga held no public office between 2013 and 2017. In 2017 he had successfully contested Uluru’s presidential victory at the Supreme Court and proceeded to boycott a repeat poll ordered by the same court, citing lack of a competent and impartial electoral commission.

Two months before the two leaders met and shook hands on the steps of Harambee House, launching the BBI as a result, Raila had also made real his threat to take a symbolic presidential oath, in defiance of Mr Kenyatta, as the “people’s president “

Meanwhile, 76 people had died during the opposition protests by the time Uhuru was sworn-in for in for the second term as president. Pressure from civil society organizations and the international community to find a political settlement was piling. A debt-burdened economy was threatening to stall. Mr Kenyatta, like the former president Mwai Kibaki before him, was probably worried about tarnishing his own legacy.

It was in this context that the BBI process came about to create additional positions within the executive to accommodate more ethno-regional elites that, are often useful in legitimizing political regimes.

In sum, one could argue that the BBI proposals were, and still are, meant to curb the excessive elite fragmentation that has marked the country’s political history since the 1980s and 1990s in order to produce the elite pact of domination that existed during the 1960s and 1970s.

Before the Constitutional and Human Rights Court complicated the BBI process by declaring it “unconstitutional, null and void,” the BBI report had yet again tightened control around the presidency. If successful, the president would get to appoint a prime minister from parliament, who will also be the leader of the largest political parties.

The president would also appoint two deputy prime ministers and cabinet ministers drawn from within and outside parliament. The report had also recommended the disbandment of the National Police Service Commission and the creation of a National Police Council to be chaired by a cabinet secretary, yet another presidential appointee. It had also established the office of an ombudsman within the Judiciary, to be appointed by the president.

As Mr and his allies continue to wish for the return to a more “orderly” past, where a few individuals with disproportionate political and administrative power could decide the fate of the entire country, it would be to their advantage to know that system of elite domination carries inherent contradictions. The more the political class expands, the more we shall witness fragmentation within in ranks.

Elite fragmentation births legal and institutional transformation, such as the 2010 constitution. Put differently, the more the political elite become busy fighting amongst themselves for state resources, the more constitutional transformations the country will see.

It is my view that the current limitations placed on the president and the executive by the constitutions, the restiveness within Kenyatta’s Central Kenya political base and the associated political realignments in the run-up to the next general elections in 2022, should all be understood within this framework.

Cover photo courtesy of PSCU Kenya.