How imperial president could make comeback

Kenyans will have an influential president with sweeping powers to hire and fire his Cabinet at will, should proposed changes pass through a referendum.

The much-publicised Building Bridges Initiatives (BBI) report received by President Uhuru Kenyatta and ODM leader Raila Odinga at Kisii State Lodge yesterday, proposes a Head of State who will appoint the Cabinet, including the Prime Minister and two deputies.

The president will have the last say in appointing the PM from the Majority party in the National Assembly, as he/she will nominate the candidate for approval and if rejected a second time, he/she will proceed to choose the person without further reference to the House.

“The PM may be dismissed by the President or through a vote of no confidence in the National Assembly,” reads the report.

The report by the Steering Committee, chaired by Garissa Senator Yusuf Haji, further seeks to have a mixed Cabinet composed of Members of the National Assembly and technocrats and exonerates principal secretaries (PSs) from parliamentary vetting.

Presidential system

This will be a departure from the current pure presidential system, where ministers are appointed outside parliament and work at the pleasure of the appointing authority.

However, it closely mirrors the independent constitution, which had a hybrid system of government and was overwhelmingly voted out by Kenyans in 2010, ushering the present constitution.

The PM will now be included in the National Security Advisory Committee (NSAC) and leader of government business in the House. The report, therefore, seeks to expand the structure of the Executive by amending Chapter Nine of the Constitution by effecting the changes, including to have the Attorney General (AG), who is currently an ex-officio in the Cabinet as the chief government legal advisor elevated to a CS.

The report proposes changes to Article 155 (Principal Secretaries) to remove the requirement for vetting of the PSs by the National Assembly.

“This is to limit the politicisation of the Public Service and ensure that their accountability is administrative and technical,” reads Clause 29 of the Constitution of Kenya (Amendments), Bill, 2020. While Clause 30 of the Bill proposes to amend Article 156 (Attorney General) to clarify that as a member of the Cabinet, the Attorney General shall perform the functions of a Cabinet Secretary.

Yesterday, Uhuru and Raila drummed up support for the document, saying it is not just creating positions for individuals but addressing challenges ailing the nation.

The report seeks to remove the condition requiring a presidential election to be cancelled and a new election held where a person nominated as a deputy president dies on or before a scheduled election.

This is to ensure a presidential election is held despite the death of a running mate of the presidential candidate to avoid uncertainty and minimise tension. “Expanding the national executive in order to promote greater inclusivity, and mitigate the drawbacks of the winner-take-all electoral formula,” reads the report.

It, therefore, recommends the introduction of the office of the PM and two deputy PMs, with leadership roles in the executive and Parliament.

“It also provides that half of the Cabinet Ministers shall be appointed from among members of the National Assembly,” reads the report.

It adds: “It also provides that Cabinet Ministers may be appointed from among members of the National Assembly. The committee makes this recommendation cognizant of the provisions of Article 77(1) of the Constitution of Kenya which bars state officers from receiving emoluments for more than one role.”

Captured in the brief on the Constitution of Kenya (Amendment), Bill, 2020, the new executive structure seeks to achieve inclusivity, cohesiveness and unity. Clause 20 of the Bill, proposes to amend Article 130 (the National Executive) to introduce the Prime Minister and the Deputy Prime Ministers.

While Clause 21 of the Bill proposes to amend Article 131 (Authority of the President) to include the PM and DPMs in the list of persons who shall assist the president in the exercise of the executive authority.

Rename office

“The amendment also proposes to rename the office of Cabinet Secretary as Cabinet Minister to reflect a profile change of this office noting that some holders may be appointed from members of the National Assembly,” reads the Bill.

Another Clause 22 of the Bill, seeks to amend Article 132 (Functions of the President) to provide for the President to report on the progress in achieving the economic and social rights guaranteed under Article 43 by submitting a report for debate to the National Assembly. The report has also proposed to insert new Articles 151A, 151B, 151C, and 151D (The office of PM and DPMs) to provide for the mode of their appointment and functions.

“The PM is to be nominated by the President from among the elected Members of the National Assembly from a political party having a majority of Members in the National Assembly through a stipulated procedure,” reads the Bill.

“The nominee shall not assume office until his or her nomination is confirmed by a resolution of the National Assembly supported by a majority vote of the members.”

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