Kenya Reforming Constitution: Is Parliament Ready for Prime Time?

A committee of the Kenyan Parliament has agreed to do away with the position of prime minister as part of a reform of its constitution.  The position of prime minister was created in 2008 as a way to allow for power sharing in bring an end to the bloody confrontations that followed Kenya’s national elections in 2007 that were close and highly contested.  It was an arrangement that made sense around the negotiating table but very little sense in being able to govern the nation. If passed, now Kenya will return to having only a president as executive – but this time with increased powers for the parliament to deliver real checks and balances.  Maybe.

The powers of parliament and the executive will become even more separate:

• Power be devolved to a senate and a network of local counties

• The president should no longer be able to appoint judges

• MPs appointed to a cabinet position would have to give up their parliamentary seat.

This follows a trend with constitutions in Africa that are much more like a presidential system on paper even if they remain parliamentary in practice. Political scientists who are interested in legislative institutions – and legislative strengthening professionals who work on projects to enhance the power of those institutions – spend a great deal of time discussing the relative merits of presidential (like the U.S.) and parliamentary systems (like the U.K.). Not surprisingly, those sharp distinctions don’t work all that well in many cases, especially in Africa.

Matthew Shugart and John Carey, in their excellent book Presidents and Assemblies: Constitutional Design and Electoral Politics, discuss various categories of regime types and make a crucial distinction between premier-presidential and president-parliamentary regimes. Both types are designed to include presidential regimes that do not fit one of the standard definitions of such a regime (i.e., popular election of the chief executive; terms of the chief executive and assembly are fixed, and not contingent on mutual confidence; the elected executive names and directs the composition of the government; and, the president has some constitutionally granted lawmaking authority). A premier-presidential regime has both a premier or prime minister and a popularly elected president. These regimes are commonly known as “semi-presidential.” By contrast, a president-parliamentary regime is one in which the president and the parliament have authority over the composition of cabinets. Kenya’s new system looks to be very much in the latter category.

But party dynamics are as important as structure, and the domination of the political system by one party is highly problematic in may African systems.  Even when parties change power via free and fair elections it is almost always one party winning everything the other parties suddenly on the outs.  Divided government is rare in Africa, with some outlier cases in Malawi and some version of it in Zimbabwe.  The case of Zambia is a lesson of what Kenya should seek to avoid.

Zambia’s independently-elected president has always been from the same political party as the majority party in the parliament, creating a situation in which party discipline has been given priority over separation of powers between the branches of government. This also works to place the National Assembly in a secondary role to the executive in critical areas such as the legislative process, the budget process, legislative oversight, and establishment of policy priorities. Partisan politics and party discipline are not necessarily negative, but should not prevent one branch of government from fully carrying out its constitutional responsibilities. Many Zambians have become so accustomed to single-party domination of both the Executive and Parliament that they are unaware of the separate constitutional duties and functions of those branches of government. At some point in Zambia’s future it is likely that the executive and legislative branches will be controlled by different political parties. They are designed to be linked but separate and while their roles are complimentary in some cases, certain checks and balances must be developed in order for the system, as designed by the constitution, to operate according to standard definitions of a separation-of-powers system.

Ask most Zambians, and they will offer the British Parliament as their model for parliamentary design, process and practice. These attitudes affect much of the daily activities of MPs, government officials, and the citizenry as it relates to the operation of government and the relationship between the legislature and the executive. Clearly, this impression is based on an history of British colonial rule, current active participation in the Commonwealth, the parliamentary systems in many other African states, and the feeling that one party will always dominate both branches.Fewer see the American presidential system as the model. The confusion is not based upon what’s in the constitution but how the politics play out. Winner always takes all.

Winner taking all will not work for Kenya, as we have already seen. The possibility of one party (or coalition of parties) controlling parliament while another hold the presidency should not be seen as the specter of gridlock in governance but an opportunity to truly establish the parliament as an independent institution with the capacity and political incentive to play a separate and distinct role in governing the nation.  Kenya has seen advances in this area as its parliament has introduced landmark legislation in the past – and this most recent constitutional change is another advance. The U.S. has poured many millions of dollars into supporting the Kenyan parliament and there has been some pay-off.  But all the technical assistance (study tours, training sessions, delivery of computers) will be only window dressing if parliament cannot muster the political independence to play a greater role.  Just now the U.S. is cutting off aid to education in Kenya because of corruption charges  (a mere $1 million is missing); at the same time the U.S. is urging constitutional reform with teeth. That coordination makes good sense – better governance should mean less corruption. That’s the theory, at least, and parliaments in places like Kenya appear to be playing a greater role.  Scholar Joel Barkan notes (in the abstract from his 2008 article on African parliaments, Legislatures on the Rise?):

Although legislative performance is uneven across the African continent, the legislature is emerging as a “player” in some countries. It has begun to initiate and modify laws to a degree never seen during the era of neopatrimonial rule or even in the early years after the return of multiparty politics. And in some countries (Kenya, Malawi, and Nigeria), though not in others (Namibia and Uganda), it has blocked presidents from changing the constitution to repeal limits on presidential terms. In short, legislatures in Africa are beginning to matter. That said, there is no uniformity across Africa and we are only beginning to understand and explain the variations.

But Kenya gets middling grades in the most recent Freedom House survey (hereand see Derek Catsam’s excellent post on FPA’s Africa blog here) and the Kenyan parliament receives a very weak score in the Parliamentary Powers Index (here). One of the authors of that index, M. Steven Fish, wrote an op-ed about Kenya in 2008 (in the Washington Post), seeking to explain the turmoil following the elections:

But although this conflict does indeed run along ethnic lines, ethnic diversity is not to blame for the disaster. The key culprit is, rather, a serious flaw in Kenya’s governance: the weakness of its national legislature…Kenya’s parliament is anemic. In our global survey of the power of national legislatures, Kenya ranks only 126th out of 158 countries, well behind other developing nations such as India (44th), South Africa (48th), Benin (59th), Brazil (60th) and Ghana (82nd).

Has the outside money invested in supporting the Kenyan parliament helped?  This next phase in Kenya will be a major test to see if the U.S. investment in the Kenyan parliament will pay dividends.  If so, government will be slower, messier and more adversarial in Kenya – but also with more oversight and representation.  That’s a trade off worth making.  But if not, Kenya will continue to suffer and the way that development agencies (and their contractors) seek to “strengthen” parliaments should be seriously reevaluated.