What Is the Truth About Separation of Executive Powers in the Harmonized Draft?

If one listens to most people talk about the recently released harmonised draft constitution, it is as if the word democracy is synonymous with the word elections. That is why you hear PNU talk about executive authority being exercised only by individuals who have been subject to direct voting by the voters themselves. More often than not, very few people who live in electoral democracies feel that elections result in a government which truly responds to their needs. At its best, electoral politics seems only to solve the problem of succession.

I find it much more useful to talk about democracy in terms of institutions and not events, personalities or individuals. This is precisely the trap Kenyans must evade falling into.

Under the harmonised draft, unlike the pre-NARA constitution law, there is clear-cut separation of powers between the President and the PM. The proposed checks and balances ensure that no single institution has been allowed the powers to operate as it wishes. The harmonised draft also presents a situation where all electoral players – winners and losers, majority and minority - end up playing a significant role in our governance.

The president will be head of State while the PM will be head of Government. The draft is neither a presidential nor a parliamentary system of government. It is a hybrid system and that which is said to be necessary for a highly polarised country like Kenya burdened with a host of national problems tracing their origin to the Office of the President. As Bw. Kitonga revealed, this harmonised draft responds to the needs of the Kenyan by creating a dignified, stately-cum-executive presidency (not president) with sufficient authority to oversee, unite and protect the country but without the baggage of the day-to-day running of government.

Previously, the President acted as both head of State and Head of Government, and had a wide range of powers, very few of which were either shared or checked. This is precisely what led to the feared term IMPERIAL PRESIDENCY. Political competition for this seat, where winner takes it all, is largely to blame for the deep ethnic divisions in Kenya.

Under the draft however, the President will now only act most times on the advise of the Prime Minister and the Cabinet and his decisions will have to be approved by Parliament. This should provide sufficient checks and balances and is perhaps one of the most significant clauses of the draft! Just imagine, no more cronyism, no more nepotism or blatant ethnicity in public appointments that the three previous heads of state were so notorious for.

The PM will only nominate cabinet ministers and other public officials for appointment by the President. In this case, the PM draws his authority in the process of nominating people to these public positions but with the approval of parliament! Parliament has gobbled up the powers of what used to be ‘serving at the pleasure/prerogative of the president’. The President remains the final authorised signatory of government decisions. Executive authority does not just imply the running of government.

Additionally, the President will retain all of the trappings and privileges of office: He or she will still live at State House, preside over national holiday functions and have a motorcade with outriders, and remain symbol of national unity. In other words rise above partisan politics that Kenyan presidents have become so notorious for.

The president will still be the Commander-in-Chief and Chairperson of the National Security Council, the President will also preside over passing out parades of security forces. With the approval of Parliament, he or she may sign treaties and international agreements. The president retains the power to declare a state of emergency or a war but again, only with the approval of parliament.

The President will now have the powers to dismiss judges of the superior courts and any other State or public officer whom the constitution requires the State President to appoint. However, he will only do this through the advice of bodies such as the Judicial Service Commission and Parliament.

The President will also have the powers to appoint high commissioners, ambassadors and consular representatives with the approval of the National Assembly. He or she will also receive foreign diplomatic and consular representatives.

The President also holds the power to pardon offenders through an advisory committee made up of the Attorney General, the minister in charge of prisons and five other members who do not hold public office.

The role of signing Bills into law also remains with the President under the new draft. He or she will also have the powers to direct the PM to ensure that any Act of Parliament is implemented.

If all this is not executive authority, then what is?

On the other hand, the harmonised draft requires the PM is appointed by the President. The PM is appointed on the basis of being the leader of the party with the highest representation in Parliament. He or she is not voted in by MPs as has been alleged in sections of the media. And this is where it gets interesting as MPs must approve his appointment as PM. Should they fail to do so, parliament will be required to nominate one of their own as prime minister within 60 days failure to which it will be dissolved and a general election called.

This is where in my opinion, some FINE TUNING need to be undertaken. The appointment of the PM, once he leads majority MPs in the national assembly, should not be subject to parliamentary approval. Neither should parliament be the one to nominate the next PM should the office fall vacant. This privilege should go to the party with the majority of MPs in the house. But that’s only my opinion as a Kenyan.

Back to the harmonised draft , the PM will exercise some executive authority as he or she will take over the current powers exercised by a president in the day-to-day running of government. The same draft requires that no cabinet decision can be implemented unless it has been signed by the PM.

The PM will have a primary role of directing and coordinating the work of ministries and preparing legislation, and is responsible to Parliament. The PM will preside over Cabinet meetings.

The PM is further required to promptly and consistently brief the President on the conduct of government affairs. This means the PM reports not just to parliament (as the body representing the people) but also to the president as head of State.

The powers of the PM will be constantly checked by Parliament because he or she can be sacked together with his entire Cabinet by a simple majority in parliament. If parliament passes a motion of no confidence in the PM, he or she and the ministers and deputy ministers will be required to resign. If they do not do so in seven days, the President will be required by law to dismiss them.

The PM will also advise the President on any dismissal of the deputy Prime Minister, a minister or a deputy minister. Parliament can also pass a vote of no confidence on a member of the Cabinet after which he will be required to resign within three days. In other words, it will not be left to the minister to await presidential action or speculate on the public mood so as to resign.

Clearly, anyone suggesting that the PM should also be subject to a direct vote is missing the point by a million miles. In a multi-party democracy like Kenya, it is perhaps even more a challenge emerging the leader of a party with the majority MPs than it is for one to get elected as president. As mentioned in the beginning of this post, democracy does not start and end with elections. The import of this requirement of nominating the PM is aimed at putting focus political parties and their policies and manifestos. In any case, voters who vote for MPs and political parties are the same voters who vote for presidents, therefore no one can really claim to enjoy mandate more than the other.

The harmonised draft gets even sweeter. It allows for the President to be impeached by Parliament through a motion approved by at least two thirds of all members of the National Assembly. However, the President remains in office until the Senate hears and determines the charges against him.

Now you can breath out, and proceed suggest your personal recommendations to the committee of experts on this contentious issue of the separation of powers plus any other you may have spotted.