You will be aware that the National Dialogue Committee report has proposed some juicy jobs for certain politicians who did not win the presidency (or did not try).
The problem arises partly from adopting, without thinking it through, the American system of government. Kenyan politicians were used to the parliamentary system, where everybody (politician) who is anybody is a Member of Parliament.
But under the new system the most powerful opponent of the President in the elections is not in Parliament – which is where people were used to seeing the leader of the opposition. And that opponent has no government job and salary – after having doubtless spent a fortune contesting the election.
Of course, the last time Kenya had a Prime Minister (PM) was in 2008-12 – when the post-election violence settlement made Raila Odinga, (who was leader of the opposition) Prime Minister. And effectively there was no opposition.
Nadco has proposed a PM and a Leader of the Opposition (LOO)- a bit like the BBI report. But, while the BBI’s constitutional amendment Bill would have made both of these MPs, the Nadco Bill does not.
Prime Minister
Prime Ministers vary greatly. Some are the heads of government, and the head of state must do what the PM “advises” - which means essentially “instructs”.
In a “hybrid system” like the French, both PM and President have certain functions. The PM is chosen from Parliament and will have the support of the majority of that body. But if the PM and President are of the same party the PM will be less important and if they do not there is a risk of tension between the two. In Russia the personality of President Putin means the PM is neither a prominent nor a powerful figure.
In Tanzania the PM has “authority over execution of the day-to-day functions and affairs of the Government” and is “Leader of Government business in the National Assembly”. In Uganda the PM is “the Leader of Government Business in Parliament and … responsible for the coordination and implementation of Government policies across ministries, departments and other public institutions”.
Nadco’s proposed PM would assist the President and Deputy in coordination, supervision and implementation of government programmes, and “coordinate government’s legislative agenda across departments”. The latter is obscure. The first gives the PM very little real authority. And they would not be leader of government parliamentary business because they would not be an MP.
This would be probably the weakest “prime ministerial” position in the world. It is fundamentally like the position held by Musalia Mudavadi: an opportunity for a President to give special recognition to a politician who has brought substantial benefits in terms of votes.
It seems – from the Nadco’s rather poorly drafted Bill - that the PM would not be a Cabinet Secretary, so Cabinet would increase by one.
There is potential for some conflict with Parliament, but unlikely if we continue to have the sort of weak-kneed Parliament we have had. In theory the President must have a PM – but if the support of Parliament was not forthcoming, the President could presumably just go on nominating, and, if Parliament refused to endorse, would simply operate without a PM. The President could sack the PM – but maybe not replace them if parliament did not cooperate.
Leader of the Opposition
The best loser in the presidential election would become LOO. This an even odder idea than the PM. The report does make the interesting observation that the post would make it harder for government to suppress opposition and move towards a one-party state.
It seems that the LOO would not be in Parliament after appointment, though neither the report nor the attached Bill makes it entirely clear. If not, the LOO would risk having limited power to influence the opposition in Parliament.
The Nadco Bill specifies no functions for that person. The report says Parliament should pass law on this, including providing alternative policy agendas, fostering cooperation between government and opposition, and promoting good governance.
Various loose ends remain. The Bill gives alternative ways of identifying the LOO – as the best loser, or by being nominated by a party or coalition (presumably the dominant, non-government party/coalition in the National Assembly). But which method is to be used if they would produce different results?
There would be two deputy LOOs – but there is no indication of how they are to be chosen.
Finally – this seems to be a deal for a nice package for the best loser, but no guarantee they will do anything useful. How are they to be removed if they do not perform?
Just a thought – why not allow people to stand for election to the National Assembly as well as President, so if that best loser wins a parliamentary seat they have a job and a salary to fall back on?
LOO’s earnings
The Nadco Bill says that the salaries of the LOO would be “a charge on the Consolidated Fund”. This fund is the government’s main bank account and all revenue is paid into it unless a separate fund is set up by law.
I assume that Nadco wanted to clarify that the LOO would be paid from public funds. But “A charge on” means more than that: it means that this debt is given priority over others. The national debt is such a charge, so are salaries of the President and Deputy, judges, independent office holders – but not MPs. Why should that of the LOO be?
And: the Bill would not make the LOO a “state officer”. So Salaries and Remuneration Commission couldn’t fix their salary. Who would?
A few other proposals merit quick examination.
Equitable share
At present at least 15 per cent of the revenue raised nationally (in the most recent year for which the National Assembly has approved the audited accounts) must be allocated to counties annually. Various people have suggested this should be raised – to 35 or even 45 per cent. The Bill says it should be raised to 20 per cent. But in no year so far has that share gone below 20 per cent so this change would no doing anything, unless things change radically.
Ensuring obedience to court orders
The report proposes a constitutional provision that all state and public officers have a duty to obey court orders, and courts may impose a penalty if they disobey. But already everyone must obey a court order that is directed at them. And the courts may already impose a penalty – for contempt of court. What is needed is for the other parties and courts to ensure that orders are directed at the right people, and not just institutions, and there is persistence in getting the existing penalties applied.
If, of course, the offender is the President things are different – he cannot be penalised in this way, at least while in office.
Walter Khobe has pointed out that the Ghanaian Constitution makes this a “high crime” with a penalty of imprisonment without fine, and barring from office for 10 years!
Abolish two courts
The report proposes that the Environment and Land Court and the Employment and Labour Relations Court be replaced by specialised divisions of the High Court.
This may be a good idea, but needs careful consideration. Their creation was in response to disadvantages experienced in relying on a High Court division to hear these cases.
There have been consequences. Chief Justice Mutunga could not use judges from those courts to help tackle the backlog in High Court criminal cases.
Cases sometimes fail in one court just because they should have been brought in another. And Judges may prefer the possibility of not being stuck in just one area of law. In reality these courts do not have the same status as the High Court.
However, in various countries specialised courts (like the Land and Environment Court in New South Wales) have earned respect. And maybe we could devise procedures to prevent litigants who choose the wrong court having to start a case again from scratch in another.