Kenya Constitutional reform from presidentialism back to presidentialism

Kenya Constitutional reform from presidentialism back to presidentialism By Sophia Moestrup, Ph.D., Deputy Director, Central and West Africa, National Democratic Institute (NDI), Washington, DC, USA Paper presented at the 23 rd World Congress of Political Science, IPSA Montreal, Canada, July 19-24, 2014 Abstract: Kenya seemingly embarked on a transition towards a semi-presidential regime only to reverse course back to presidentialism at the conclusion of a nearly 20-year long constitutional reform process conducted in fits and starts. The present paper traces the shifting political alliances and the changing interests of leading political actors driving the process and influencing its final outcome. The relationship between former President Mwai Kibaki and former Prime Minister Raila Odinga as well as shifting ethnic alliances around them, were determining factors in the on-off inclusion of a prime ministerial position in the revised constitution. As part of the power-sharing agreement following the 2007 election-related violence, constitutional amendments in 2008 introduced the position of prime minister. A committee of experts drafted a constitution that would have maintained a semi-presidential system and sent it to parliament for final approval in 2010. The parliamentary committee in charge of reviewing the draft, with nearequal representation of members of Kibaki s and Odinga s parties, consensually chose a presidential system instead. Odinga, previously a staunch supporter of semi-presidentialism, did an apparent full reversal of position as his own chances of becoming president in 2012 seemed high. Ironically, the 2012 race led to Uhuru Kenyatta winning the presidency. The complex and protracted constitutional revision process in Kenya provides an opportunity to analyze the interaction of institutions, coalition building and the interests of leading political figures in determining outcomes of constitutional reform in a nascent multi-ethnic democracy. Introduction Constitutional reform has been at the heart of the quest for greater political pluralism and a more legitimate, democratic system in Kenya, since the early 1990s (Mutua 2008, 17). In essence, the struggle for reform was centered on reducing and controlling executive powers, concentrated in the hands of a largely unaccountable president. The transition to multipartism in 1991 did little, by itself, to democratize political processes in the country. Semi-presidentialism may appear as a particularly well suited constitutional form in ethnically divided societies like Kenya (see Figure 1 below) because of its potential for powersharing between two executives (Sartori 1997, 121) and the checks and balances provided by having a dual executive (Roeder 2005, 52). Also, in a country like Kenya without a single, dominant ethnic group, semi-presidentialism can provide an incentive for coalition building 1

through pre-election agreements around the sharing of executive power within the dual executive. FIGURE 1: Kenya s Ethnic Map (source: BBC News, 2013) A returning theme in efforts at introducing greater checks on presidential powers in Kenya has indeed been the call by opposition leaders for the reintroduction of the prime minister position, abolished shortly after Kenya s independence. Proposals to reestablish the post of prime minister were brought forward and rejected in 1967, 1970, and 1980. A constitutional amendment bill providing for an executive prime minister that would have encroached considerably on the powers of the president failed in 1992 (Throup and Hornsby 1998, 224-8). It took the 2007 post-election violence for a semi-presidential constitution to be adopted, as part of a power-sharing agreement between President Mwai Kibaki and opposition leader Raila Odinga to end the violence. Odinga took on the position as prime minister. Even so, the 2

protracted constitutional reform process concluded in 2010 with the adoption of a new, presidential constitution. Kibaki and Odinga campaigned side-by-side for a yes vote in the national referendum that passed the new fundamental text. Kenya s semi-presidential experiment only lasted five years, from 2008 to 2013, as the 2010 presidential constitution entered into force after the presidential poll in 2013. This raises the question of why did Kenya not maintain a semi-presidential constitution, in 2010? Why did the opposition acquiesce to the return to presidentialism, giving up the hard-fought gains won in 2008? To understand this apparent reversal, the paper will discuss the institutional framework for the complex constitutional reform process, and trace the shifting interests of leading actors and alliances. The constitutional reform process in Kenya was highly participatory 1 (Bannon 2007, 1830), with the collection of input from a wide swath of the population. The process was also representative, with the participation of ruling and opposition parties, civil society, religious groups and others in a national constitutional convention. At the same time, the final drafts submitted to a popular referendum in 2005 and 2010, respectively, suffered from institutional self-dealing to various degrees. 2 Actors having a final say on the content of the draft constitution sought to entrench what they perceived to be their own interests. As we shall see, the changing institutional framework for constitutional reform was a political battleground in itself that was masterly manipulated by chief protagonists in the reform battles. The interests of pro-democracy forces in Kenyan civil society and of leading opposition leaders did not always converge. Finally, in 2010, popular and external pressures as well as the calculations of the two incumbent executives President Kibaki and Prime Minister Odinga aligned, allowing for the passage of a new constitution with reduced presidential powers, but no prime minister. 1 For a survey of constitutional design processes arguing for the positive impact of more participatory processes on the quality of democracy, see Samuels (2006). 2 For a discussion of institutional self-dealing, defined as a situation where drafters who occupy or seek to occupy government positions may act in the interest of their respective institutions (Ginsburg et al. 2009, 12), see ibid. (pp. 11-14). 3

The dynamics of changing ethnic alliances following the transition to multipartism, led a key political opposition leader, Odinga, to discard the choice of semi-presidentialism in the final instance. From being an opposition leader stemming from an ethnic group unlikely to secure a majority, he became the leader of a multi-ethnic alliance with national backing and presidential potential. His support for semi-presidentialism waned accordingly. Odinga s calculations backfired, however, when his coalition disintegrated and Uhuru Kenyatta, son of former President Jomo Kenyatta, won the presidency in 2013 at the head of yet another, reconfigurated alliance among major ethnic groups. In the following, I discuss political and constitutional developments during key periods in Kenya s recent political history: the period under single-party regime, 1963-91; the early multiparty years characterized by intense struggles for constitutional reform, 1992-2007; the semi-presidential experiment, 2008-2013; and the ultimate adoption of a revised presidential constitution, in 2010. In the conclusion, I summarize the argument that in a nascent multi-ethnic democracy, the dynamics of ethnic alliances influence strategic institutional choices by leading politicians sometimes with unintended consequences. Political and constitutional evolution under KANU-dominance, 1963-1991 At independence in 1963, Great Britain, the former colonial power, supported the adoption of a constitution providing for a highly federated system, with a significant decentralization of power that protected the interests of smaller ethnic groups in Kenya s multi-ethnic society. However, upon taking power, newly elected Prime Minister Jomo Kenyatta and his allies in the Kenya African National Union (KANU) party moved swiftly to establish a strong centralized state, leaving behind federalist provisions negotiated as part of the transition constitution. KANU represented the interests of the politically and economically dominant ethnic groups in the country the Kikuyu and Luo which were distrusted by other groupings such as the Kalenjin, Luhya and coastal communities. The latter, organized within the rival party, the Kenya African Democratic Union (KADU), feared the political and economic domination of the Luo and particularly the Kikuyu, notably with regards to access to land in the fertile areas previously reserved for white settlers during the British colonization (Anderson 2005). 4

Kenyatta became the president of Kenya in December 1964, and KANU proceeded to absorb KADU, to centralize power and to restrict political space through a series of 10 constitutional amendments during the period 1963-69 (Okoth-Ogendo 1972). In 1969, the country became a de facto single-party state, when KANU was left as the only legally registered party. Any internal dissent within KANU was quelled, and former allies of Kenyatta, such as Oginga Odinga (a leading Luo), jailed. Power became increasingly centralized in the hands of the president. In 1982, legislation adopted under President Daniel arap Moi confirmed Kenya as a de jure one-party state (Throup and Hornsby 1998, 31). Kenya remained under the control of a single party till December 1991. Vice-president Moi, a Kalenjin, became president upon Kenyatta s death in 1978. Kenyatta, a Kikuyu himself, had favored Kikuyus in appointments to high positions within the state administration. Kenyatta had also, however, followed a carefully calibrated patronage approach, leaning on power networks established by local leaders whom he co-opted into government. This resulted in remarkable government stability, with cabinet ministers serving for long uninterrupted periods, up to 15 years. Upon taking the president s seat, Moi proceeded with an elite replacement, by placing Kalenjin in leadership positions in the civil service. His approach was moreover one of divide and rule, whereby local leaders who developed too much independent power were removed from positions of influence (ibid. 45-49). In 1990-91, KANU s grip on power was threatened by a confluence of internal and external pressure. Moi s rule had created a reservoir of leading Kikuyus and other elite members, excluded from access to lucrative jobs in the state, who came to see multipartism and democratic reform as a means of returning to power (Mutua 2008, 77). These politicians found common ground with members of the clergy and professional bodies such as the Law Society of Kenya, among the few Kenyans in the late 1980s still in a position to speak up against the government s authoritarian and corrupt practices. At the same time, ill-advised economic policies contributed to a worsening balance of payments, while the end of the cold war led to greater pressure by donor countries for political and economic reform (Throup and Hornsby 1998, 72-73). In the face of mounting pressures from all sides, Moi sought to retain the initiative by moving swiftly to amend the constitution to reinstate multipartism. By the same token, presidential term limits were reduced to two, counting from the 1992 presidential poll (ibid. 86-88). 5

Multipartism and aborted constitutional reform, 1992-2007 President Moi managed to cling to power in the 1992 presidential election, as the leading opposition party, Forum for the Restoration of Democracy (FORD), was riven by leadership struggles and split, largely along ethnic lines. Oginga Odinga became the leader of FORD- Kenya, the most national oriented faction, which still largely drew its support from the Luodominated Nyanza region, while Kenneth Matiba, a leading Kikuyu businessman and former minister under Moi, became the chair of FORD-Asili. FORD-Asili drew the majority of its support from Nairobi and Central provinces, with large Kikuyu populations (Mutua 1998, 87). Over the following decade, pressure for constitutional reform to reduce the powers of the president and level the political playing field continued to mount. In the lead-up to the 1997 presidential poll, increasingly vocal and organized human rights and rule of law organizations pushed forward, in alliance with religious groups and opposition parties, and formulated an agenda for reform. However, at the finish line, a number of opposition leaders blinked and accepted the government s offer to negotiate directly within the framework of the Inter-Party Parliamentary Group (IPPG), a move which effectively sidelined civil society, seen as demanding more radical reform (ibid. 101-10). As part of the IPPG talks, the government and opposition parties agreed that an inclusive constitutional reform process would be launched immediately following the presidential election, as outlined in the Constitution of Kenya Review Act, 1997 3 (Juma 2002, 506). Not surprisingly, Moi won reelection in December 1997, running against 14 opposition candidates. In January, 1998, the Attorney General called on political parties, religious groups, civil society, professional associations, farmers, women, youth and other stakeholders to nominate their representatives for the constitutional review commission provided for in the 1997 constitutional Review Act. The list of nominees would be submitted to the president who would make the final choice of 29 commissioners and also appoint the chairman. Predictably, this announcement was met with staunch resistance from opposition parties, civil society as well as religious groups, who opposed the heavy hand of the executive in the choice of commissioners 3 Full text of the Constitution of Kenya Review Act, 1997 is available here: http://www.constitutionnet.org/files/kel97-005.pdf. Accessed May 16, 2014. 6

and chair. The following 11 months saw protracted negotiations over the method for designating members of the constitutional review commission and its leadership, the role of parliament in the review process, the procedure for collecting citizen input, and the need or not for a referendum to validate the new constitution. An agreement was painstakingly hashed out and validated by a bill passed by parliament in December 1998 only to be scuttled by KANU s insistence on having a greater than proportional share of party representation on the commission (ibid. 507-12). In December 1999, Raila Odinga tabled a motion in parliament for the legislature to review and revise the Constitution of Kenya Review Act, 1997, as a way out of the impasse. The motion passed and Raila Odinga was elected chair of a 21-member parliamentary select committee. As the stalemate dragged on over the previous months, Moi had successfully reached out to the young Odinga to form an alliance with KANU, thereby giving KANU a majority in parliament. Raila had taken on the mantle as opposition leader, representing the Luos, after his father, Oginga Odinga s death in 1994. Following leadership struggles within FORD Kenya, Raila had left that party to become chair of the National Development Party of Kenya (NDP) in 1996. The NDP merged with KANU in August 2001, as Odinga and other NDP-members joined the cabinet. In March 2002, Odinga became Secretary General of KANU (Elischer 2008, 19-20). This was to be a shortlived merger, however, as we shall see below. The parliamentary select committee headed by Odinga proceeded to hold a series of public hearings and concluded with a report that became the basis for an amended Constitution of Kenya Review Act adopted in June, 2000. The Act gave parliament the authority to set up the constitutional review commission, with its chairman to be approved by the president from a list of names presented by the legislature (Juma 2002, 519-24). Concomitantly, civil society groups that rejected parliament s role in managing the constitutional review and demanded a more inclusive route, launched a parallel constitutional review process the so-called Ufungamano 4 Initiative in December 1999. The Ufungamano Initiative included human rights and faith groups, youth and women associations, trade unions as 4 So-called after Ufungamano House, also known as the Christian Students Leadership Centre, located on the grounds of the University of Nairobi. 7

well as some opposition parties. 5 It went on to form its own constitutional review commission the People s Commission of Kenya (PCK). In an effort to neutralize the Ufungamano challenge, Moi appointed a well respected Kenyan constitutional law expert and professor at the University of Hong Kong, Professor Yash Ghai, to head the constitutional review commission in November, 2000. However, as a condition for his acceptance of the position, Ghai insisted that the two parallel initiatives become one (Mati 2012, 16). With the merger of the government and civil society initiatives in March 2001, the Constitution of Kenya Review Commission (CKRC) could finally set to work nearly 10 years after Kenya transitioned to multipartism. Composed of 10 Ufungamano commissioners and 17 nominated by parliament (ibid. 301), the CKRC managed to overcome internal tensions and to produce a new draft constitution in September 2002, 6 based on widespread consultations and the receipt of over 35,000 written contributions from the public. 7 Moi stymied the adoption of the new constitution ahead of the December, 2002 presidential election, however, by dissolving parliament in October and thereby preventing the convening of a National Constitutional Conference (on which MPs were to be seated) to discuss and approve or discard the draft constitution (Gathii 2008, 1118). The 2002 draft constitution included provisions for a prime minister position. This position became an important bargaining chip in cementing the opposition National Rainbow Coalition (NARC) ahead of the 2002 presidential elections and enabling the fielding of a joint presidential candidate for the opposition, for the first time. NARC was composed of the National Alliance of Kenya (NAK), headed by Mwai Kibaki (former vice-president under Moi), and Odinga s newly established Liberal Democratic Party (LDP), created in October 2002 by 5 For a detailed study of the rise and fall of the Ufungamano Initiative, see Mati (2012). 6 Constitution of Kenya Review Commission (2002). 7 For an interesting analysis of regional variation in the views expressed by Kenyan citizens during the consultative process, see Diepeveen (2010). While there was a general desire for more inclusive politics and greater accountability on the part of both president and parliament, there were divergent views on the need for a prime minister position to counterbalance the president. For example, while Kikuyus in Nyeri District favored the introduction of a prime minister to limit the office of the president (ibid. 238), Luos in Kisumu District did not completely reject presidential authority, a position that may have reflected the existence of dynamic big men such as Raila Odinga (ibid. 247). 8

dissidents within KANU. Odinga chose to leave KANU and throw in his lot with Kibaki after Moi opted to support Uhuru Kenyatta, former President Kenyatta s son, as presidential candidate for KANU. A memorandum of understanding signed between opposition leaders promised the prime minister position to Raila Odinga in return for his support for Mwai Kibaki s run for the presidency (Bannon 2007, 1835). The newfound opposition cohesion proved a winning strategy, as Kibaki went on to win the presidential poll and NARC secured a legislative majority in the December 2002 general elections. NARC was in essence a multi-ethnic alliance, which brought together Kibaki s Kikuyu, Odinga s Luo, as well as Kamba and Luhya leaders. The constituent parties did not dissolve and remained in existence, and the fragility of the alliance would soon become evident, once the common enemy (Moi and the Kalenjin) was vanquished (Elischer 2008, 20-21). In the wake of the elections, disagreements over the relative powers of the president and the prime minister drove the NARC apart. The unity that had allowed NARC to oust the KANUregime from power quickly fell apart as negotiations over the draft constitution proceeded, on the basis of the amended 1997 Constitution of Kenya Review Act. 8 The National Constitutional Conference (NCC) that Moi had delayed was seated in April 2003 9 and debate promptly heated up. Contentions centered on the distribution of executive powers between the president and the prime minister. In the discussions, Odinga was explicitly referred to as the would-be prime minister (Bannon 2007, 1837). Kibaki rejected the draft constitution ultimately adopted by the Conference on March 15, 2004, the so-called Bomas draft, 10 which would have instituted a semi-presidential regime in 8 The 1997 Act provided for a three part process 1) popular consultations by a review commission (the CKRC headed by Ghali) that would proceed to draft the constitution; 2) a National Constitutional Conference (NCC) that would debate, amend (with a two thirds majority) and adopt the draft constitution; and 3) the submission of the finalized draft to parliament for an up-or-down vote, with no possibilities for further amendments. The intent was to reduce the influence of the president and parliament over the constitution-writing process (Bannon 2007, 1832-34). 9 Negotiations around the composition of the NCC had been tense and emotional (Mutua 2008, 153). In the end, a total of 629 delegates were selected, two thirds of which were equally divided between MPs and delegates representing the districts of the country. The rest were composed of representatives from political parties, civil society, unions and professional associations, special interest groups, the media, etc. (ibid.). 10 So-called after the conference center where the conference took place. 9

Kenya. 11 Odinga and the LDP had leveraged their considerable organizational skills during the Conference to secure a majority vote among the 450+ delegates who voted (Mutua 2008, 202-203). The NAK-side of government walked out as the final vote was taking place, as did what was left of the Ufungamano Initiative, withdrawing from the NCC (Mati 2012, 321). 12 Following a court ruling that the draft constitution would have to be submitted to a popular referendum for adoption, parliament proceeded to revise the Constitution of Kenya Review Act accordingly. The Review Act having been opened for revision, pro-nak MPs also succeeded in passing a provision allowing MPs to revise the draft constitution (instead of just accepting or rejecting it), before submission for referendum. The amendment passed against protests from LDP as well as KANU and other opposition MPs (Bannon 2007, 1838-39). Accordingly, parliament proceeded to amend the Bomas constitution, maintaining the prime minister position, but reducing the position to a simple assistant to the president and removing the accountability of the cabinet to parliament (Chitere et al. 2006, 7). A highly acrimonious campaign followed in the lead up to the referendum on the new constitution (the version amended by parliament). Odinga and his allies were ultimately successful in their opposition as the constitution was voted down on November 21, 2005 by 57 percent of the voters. Predictably, the vote fell along ethnic lines, as 93.3 percent of Kikuyus voted yes, while only 1.4 percent of Luos did so (Kimenyi and Shugart 2008, 5). KANU s position was ambivalent: while a Kalenjin faction supported Odinga and the no camp, Kikuyus organized around Uhuru Kenyatta aligned with the government and the yes campaign (Elischer 2008, 23). 13 The deep divisions that had arisen between former allies in the process of the failed constitutional reform crystallized in the 2007 presidential election campaign, as Kibaki and Odinga faced off Kibaki on the ticket of the Party of National Unity (PNU), and Odinga as the 11 Prime minister and cabinet would have been accountable to parliament, see Arts. 173, 176 and 179 in the Bomas draft available at http://raila2007.files.wordpress.com/2007/10/draftconstitution.pdf, accessed May 26, 2014. 12 Civil society was ultimately divided by the same ethnic tensions that drove the ruling coalition apart. The NAK was left with the support of mainly clergy hailing from the central region of the country (Mati 2012, 321). 13 Elischer (2008) provides a good overview of the shifting ethnic alliances in Kenyan politics. 10

candidate for the Orange Democratic Movement (ODM) that had coalesced around the no vote in the 2005 referendum. 14 Following apparent manipulation of the vote count to secure Kibaki s reelection, violence broke out between supporters of the two candidates killing more than 1,000 people upon the announcement of results. Violence largely broke down along ethnic lines, as Kikuyus, Kibaki s ethnic group, clashed with Luos and Kalenjin backing Odinga and his ally William Ruto. Only in February 2008, did the two opposing camps come to an internationally mediated power sharing agreement (the National Accord) providing for a constitutional amendment to introduce the position of prime minister, accountable to parliament (BBC, 28 February, 2008). Odinga became Kenya s first prime minister since 1964. Powersharing under semi-presidentialism, 2008-2013 A March 2008 constitutional amendment 15 entrenched the power-sharing agreement into the constitution by establishing the offices of prime minister and two deputy prime ministers, responsible to parliament. The amendment specifically mandated parliament to adopt an act to regulate the appointment and termination of office of the prime minister and deputy prime ministers, and the establishment of a coalition government (Art. 15A (3) (a) and (c)). The Kenyan parliament thus adopted the National Accord and Reconciliation Act in March 2008, detailing procedures for cabinet formation and dismissal that supplemented the constitutional text. 16 Article 4 of the National Accord and Reconciliation Act specified that the prime minister and deputy prime ministers could only be removed through a vote of no confidence, the dissolution of the coalition government or if the office holder resigns, dies or ceases to be a 14 A faction of the ODM broke away ahead of the election, however, to form ODM-Kenya and field its own candidate, Kalonzo Musyoka (Kamba), former foreign minister under Moi. Odinga s ODM included a greater number of leading Kibaki opponents than ODM-K, notably former Moi-ally William Ruto (Kalenjin), former foreign minister Musalia Mudavadi (Luhya), and former minister of health Charity Ngilu (Kamba) (Elischer 2008, 23-24). 15 The full text of the Constitution of Kenya (Amendment) Act, No. 3 of 2008, is available here: http://kenyalaw.org/kl/index.php?id=511, accessed March 27, 2014. 16 The full text of the National Accord and Reconciliation Act is available as Annex 1 in Horowitz (2009). 11

member of the National Assembly. This provision effectively provided for a premier-presidential system. 17 The Act also limited the president s ability to dismiss cabinet ministers by requiring the president to achieve concurrence in writing from the leader of the party to which the minister belongs. Specifically, the Act stated that The composition of the coalition government shall at all times reflect the relative parliamentary strengths of the respective parties and shall at all times take into account the principle of portfolio balance (Art. 4, 3). Furthermore, cabinet members from coalition partners other than the president s party had to be nominated by their party, but in consultation with the president (Art. 4, 2). These very detailed provisions effectively avoided a situation where either president or prime minister would be in a position to control cabinet formation. 18 Despite these very detailed instructions, the cabinet formation was contentious and protracted, requiring the return of Kofi Annan, who had brokered the February 2008 agreement, to help negotiate the distribution of key cabinet posts, such as finance and the interior. To accommodate representation of all coalition partners, the number of cabinet posts was expanded to over 40 (Horowitz 2009, 8). In fine, the power sharing principle was applied even within ministries: thus, a minister from one party was assisted by a deputy minister from another party within the coalition government. 19 The grafting of an executive prime minister onto an existing presidential constitution left other gray areas in the division of authority and power within the dual executive, however (ibid. 7). This led to frequent mutual recriminations between president and prime minister about overstepping of powers, including a row over nominations to top positions in the judicial branch (Sunday Nation, Jan. 28, 2011). The repeated power struggles within the executive may have 17 The ability or not of the president to dismiss the prime minister at will is the key constitutional feature distinguishing premier-presidential and president-parliamentary regimes within the semi-presidential family of constitutions (Shugart and Carey, 1992). This distinction is important because the president-parliamentary sub-type has been shown to be associated with a poorer democratic performance than its premier-presidential counterpart (Elgie, 2011). 18 Following the 2007 legislative polls, the ODM became the largest party in the 207-seat National Assembly with 99 seats, its ally, the NARC, having an additional 3; Kibaki s PNU and allied parties controlled 92 seats see results posted by the Inter-Parliamentary Union at: http://www.ipu.org/parline-e/reports/arc/2167_07.htm. 19 For details on the distribution of cabinet posts in the April 13, 2008 cabinet, see Appendix 2 in Horowitz (2009). 12

contributed to lead the Kenya Law Society to propose that Kenyans be given a presidential and a parliamentary constitution to choose from, in the 2010 referendum on a new constitution, stating In our view it is not ideal to have two chief executives (Capital News, Dec. 16, 2009). Constitutional reform finally succeeds with a return to presidentialism Constitutional reform was included as an integral component of the February 2008 National Accord (Agenda Item 4), in an effort to address underlying causes of the 2007 violence. Parliament passed the Constitution of Kenya Review Act in 2008, effectively repealing the 1997 Act and subsequent amendments. The 2008 Act provided for four stages in the review process: 20 1) The drafting of the constitution by a Committee of Experts (CoE), 21 based on a review of existing drafts and other material and consultations with the public on so-called contentious issues. This stage was to take 12 months and included the publication of a preliminary draft and incorporation of reactions received from the public and interested parties. 2) The review of the harmonized draft constitution by a Parliamentary Select Committee (PSC). The PSC was to reach consensus on any proposed changes and send them back to the CoE for incorporation into an amended draft. 22 3) Debate and approval of the draft constitution by the National Assembly. In the event of amendments, these would be sent back to the CoE for redrafting. 4) Submission of the draft constitution for approval in a national referendum. The CoE was seated in March 2009 and immediately set to work. At the conclusion of its review, consultation and drafting process in November 2009, the CoE proposed to keep a semipresidential system, of the premier-presidential subtype. 23 The prime minister would be the head 20 For further details, see informational brochure published in the Daily Nation on June 29, 2009, available at http://www.constitutionnet.org/files/coe_supplimentfinal.pdf, accessed June 1, 2014. 21 The CoE included two ex-officio members (the Attorney General and the Director of the secretariat of the CoE, both without voting rights) and nine experts, of whom three foreigners: Chaloka Beyani from Zambia, Christina Murray from South Africa, and Frederick Ssempebwa from Uganda. 22 The PSC was appointed in December 2008 pursuant to provisions of the 2008 Review Act, and composed of 27 members closely split between Kibaki s PNU and Odinga s ODM (Kramon and Posner 2011, 93). 23 See Harmonized Draft Constitution of Kenya (2009). 13

of government, preside over cabinet meetings, and direct and coordinate the work of ministries and the preparation of legislation (Article 179). The prime minister would be accountable to the legislature, and the president unable to dismiss him or her without a prior vote of no-confidence from the legislature (Art. 186). In the event of co-habitation between a president and prime minister from opposing parties, the president would effectively be relegated to a largely ceremonial role. For example, the cabinet would have to approve proposed legislation by the president for submission to the National Assembly as a government bill (Art. 159). The draft also provided for a two-tier system of regional and county level governments (Chapter 14). In January 2010, the PSC retreated to a resort in Naivasha, Rift Valley, to seek to hammer out an agreement on the draft constitution. The PNU and ODM went into the discussions with well established positions PNU keen on revising the draft to provide for a centralized presidential system with limited devolution, and ODM favoring a premierpresidential system and significant decentralization (Kramon and Posner 2011, 93). It was not a foregone conclusion that the PNU and ODM would successfully achieve a consensus and deliver on the promise of constitutional reform before the 2012 elections (Amadi 2009, 155). Ultimately, however, following two weeks of intense negotiations around contentious issues in the draft, the PSC came to a consensual position, overcoming initial ODM resistance. As outlined in the PSC final report of January 29, 2010 (Kenya National Assembly 2010), ODM was brought to accept a compromise solution in the form of a presidential system with a clearer separation of powers (MPs can no longer serve in cabinet) and greater checks on executive power, including parliamentary approval of all cabinet nominees by the president and the possibility for the legislature to impeach the president (Capital News, Jan. 21, 2010). With regards to decentralization, the PSC accepted the two-tier system of devolved government and the creation of 47 counties proposed by the CoE (Kenya National Assembly 2010, 10). The PSC s proposed amendments were sent back to the CoE. The CoE proceeded with a redrafting of the constitution which was submitted to the National Assembly for final debate. During the onemonth long deliberation, MPs proposed a total of 150 amendments, none of which were adopted, however. On August 1 the National Assembly approved the draft constitution, and the referendum was held only three days later, on August 4, 2010. 14

What led the ODM to change its position and agree with the PNU to override the CoE s proposal for the maintenance of a semi-presidential system? What brought Odinga to agree to mutilate the CoE draft constitution, overruling protests from civil society groups and ODM sympathizers (Juma and Okpaluba 2012)? It would appear that a combination of factors came into play. There were internal divisions within the ODM, with some members supporting the PNU in the choice of a presidential system, possibly linked to the presidential aspirations of several prominent ODM leaders, including William Ruto. The relationship between Ruto and Odinga had deteriorated, and Ruto was reconnecting with Uhuru Kenyatta, his former KANU ally (Kramon and Posner 2011, 93). 24 Odinga s own calculations appear to have shifted as well, as the 2007 presidential election had demonstrated his eligibility to presidential office, backed by a multi-ethnic coalition. A credible opinion poll at the time indicated him as the likely winner of a presidential election (Rigon 2010, 4). The new constitution was adopted by a two third majority of votes (67 percent) in the August 2010 referendum, concluding two decades of constitutional reform efforts. The 2010 constitution entered into effect following the March 2013 general election, thereby ending Kenya s short semi-presidential experiment. Overall, presidential powers provided for in Kenya s 2010 constitution are significantly lower than in the 1963 (as amended in 1999) constitution; presidential powers are lower even than in the 2008 semi-presidential constitution (for example, the president may no longer dismiss parliament), while parliament s powers have been strengthened (for example, parliament has unrestricted authority to amend the budget). See Figure 2 below that scores presidential powers using the index developed by Shugart and Carey (1992). 25 Symbolically, the chapter on parliament comes before the chapter on the executive, in the new constitution. Cabinet ministers may no longer be members of parliament, a provision 24 As prime minister, Odinga had ordered the eviction of Kalenjin squatters from the Mau Escarpment in the Rift valley in 2008 (Cheeseman et al. 2014, 7). 25 For a recent critique of the use of composite indexes such as Shugart and Carey s to measure presidential power see Fortin (2013). Fortin argues that such indexes lack validity as the chosen indicators do not reflect a larger concept of presidential power, and reliability as the measures used lack internal consistency. Her point on the challenge of using such composite indexes to test for correlations with democratic consolidation, policy performance or other phenomena is well taken. For the purposes of the present paper, the Shugart and Carey (1992) scale is useful as an illustration of variations in presidential powers across different constitutions for the same country - Kenya. 15

that provides for a better separation of powers. Also, under the 2010 constitution there is a cap on the number of cabinet secretaries that may be appointed: not fewer than 14 and not more than 22 (Art. 152). FIGURE 2: Presidential powers in Kenya compared Legislative powers 1963 (1999) 2008 2010 Package veto 1 1 2 26 Partial veto 0 0 0 Decree 0 0 0 Exclusive introduction of legislation 0 0 0 Budgetary policy 3 3 0 Referenda 0 0 0 Non-legislative powers Cabinet 4 formation 1 3 Cabinet dismissal 4 0 4 Censure 2 2 0 27 Dissolution of parliament 4 4 0 Total legislative powers Total non-legislative powers 4 14 4 2 7 7 Total 18 11 9 Pattern of authority presidential semipresidential presidential 26 The increase in presidential veto powers in 2010 is actually minimal, and linked to the fact that it now explicitly takes a two thirds parliamentary majority to overturn a presidential veto, while it previously only required a 65% majority. This minimal change leads to a difference in scoring from 1 to 2, using Shugart and Carey (1992). 27 Art. 152 (6) allows parliament to censure a cabinet minister (a) on the ground of a gross violation of a provision of the constitution or of any other law; (b) where there are serious reasons for believing that the cabinet member has committed a crime under national or international law; or (c) for gross misconduct. 16

Changing alliances and the 2013 presidential election As indicated above, Raila Odinga ran for president in 2007 with the backing of a broad coalition of parties, representing the primary ethnic groups in opposition to President Kibaki s Kikuyudominated PNU. As the 2013 presidential poll neared, that coalition broke apart. Former allies found Odinga had not done enough for them and their communities as prime minister. Even more importantly, in January 2012, the International Criminal Court (ICC) confirmed charges against four leading Kenyans as instigators for some of the worst violence following the 2007 election including William Ruto and Uhuru Kenyatta (Lynch 2014, 104). As the 2013 presidential poll approached, the ICC-case provided a powerful incentive for Kenyatta and Ruto to join forces in the Jubilee Alliance in December 2012 and run for president and vice-president under the new constitution as part of a strategy to avoid trial. Their intent was to ensure that the trials would be delayed till after the election; should they win, they could then use their power to avoid trial (Mueller 2014, 27). Mueller describes the various delay tactics used and attempts to have the cases dropped for lack of evidence, including through the intimidation and elimination of witnesses. The Uhuruto team successfully recast the ICC s charges as political and orchestrated by Odinga with support from his western allies. The Jubilee campaign also very effectively leveraged Kenyans desire for peace by convincingly projecting the Uhuruto team as the joint Kikuyu-Kalenjin ticket that could bring peace and stability to the country. The duo moreover presented itself as the modern, digital team, in contrast to the analogue incumbent, Prime Minister Odinga. Finally, Kenyatta and Ruto s campaign portrayed Odinga as revengeful, and intent on evening the scores for the troubles he and his father had suffered under the governments of Jomo Kenyatta, Moi and Kibaki revenge that would extend to the Kikuyu and Kalenjin communities. Odinga did not provide an effective counter-narrative, appearing increasingly isolated and often portrayed alone in his campaign posters, in contrast to Kenyatta appearing flanked by not only Ruto, but also by leaders from other parties, with backing from smaller ethnic groups (Lynch 2014, 107-109). 17

The Uhuruto strategy proved to be winning, as demonstrated by the evolution in opinion polls leading up to the elections. Kenyatta won the presidency 28 and the Jubilee Alliance secured a 58 and 57 percent majority in the National Assembly and Senate, respectively (Cheeseman et al. 2014, 9-10). Contrary to his calculations three years prior during the negotiations over the revised constitution, Odinga found himself out of executive office as the presidency once again went to a Kikuyu. Conclusion Kenya s protracted constitutional reform process illustrates the politics surrounding such reform in a multiethnic society. A priori, semi-presidentialism with its dual executive would appear as an ideal constitutional form in a nascent democracy with several competing ethnic groupings, none of them large enough to control executive power without backing from others. However, Kenya s semi-presidential 2008 constitution proved to be short-lived, as the strategic calculations of its principal backer, opposition leader Raila Odinga, changed. The shifting stand by key actors on the desirability of a semi-presidential constitution was closely linked to their ability to mobilize a winning multi-ethnic coalition. Representatives of smaller ethnic groups notably Raila Odinga initially advocated for the introduction of a semipresidential regime as a means of reducing and checking presidential powers, in addition to extensive decentralization. However, as Odinga s own chances of winning the presidency with support from a multi-ethnic coalition increased, his support for semi-presidentialism wavered. In 2010, he thus campaigned alongside the incumbent president for a return to presidentialism. Shifting alliances at the elite level were determinant for the ultimate outcome of the constitutional reform process. The process was highly participatory at the stage of collecting citizen concerns and aspirations. However, when time came to consolidate this input and draft a revised fundamental text, leading government and opposition actors aligned along ethnic groupings sought to control the formulation of key provisions, notably concerning the powers of 28 Though Kenyatta clearly came out ahead of Odinga, Odinga contested Kenyatta s outright win in the first round by 50.07 percent, in an election that was characterized by significant administrative challenges, and some argue outright fraud. See discussion in Long et al. (2013). 18

the president and, to a lesser extent, the decentralization of executive power. There were therefore intense struggles around the design of the constitutional reform process itself. In Kenya, the negotiated outcome of the reform process subverted the institutional solution proposed by a committee of constitutional experts, based on extensive public consultations. Drawing lessons learned from the failed 2005 constitution, the drafting of the 2010 constitution had been entrusted to a committee of experts, in an effort to isolate the process from institutional self-dealing, notably by reducing the influence of the president and parliament. In the end, the final text had, however, to be validated by the chief political actors (Odinga s ODM and Kibaki s PNU) who came to a negotiated consensus on reverting back to presidentialism from the semi-presidential constitutional draft proposed by the experts. Kenya demonstrates the limits of participatory and expert-driven constitutional reform processes when the final outcome has to be consensually agreed to by key actors in an effort at overcoming mutual distrust. Ironically, Kenya also illustrates the difficulties for key actors to act strategically and entrench their interests through the constitution in a context of fluid ethnic alliances: the presidency Odinga (a Luo) had hoped to occupy ultimately went to Uhuru Kenyatta (a Kikuyu), son of Kenya s first president Jomo Kenyatta, as Odinga lost the backing of leaders from other ethnic groups, including notably William Ruto (a Kalenjin), in the lead-up to the presidential poll. The semi-presidential constitution adopted following the 2007 electoral violence did help the country through a normalization process, with the establishment of a power-sharing government that allowed for extensive co-management of national policy. In a country with a tradition for multiethnic coalitions and where the 2007 post-electoral conflict was relatively short-lived, partisan identities had not hardened to the point of inhibiting dialogue between key political actors (Cheeseman 2011, 341); the dual executive provided for by the semi-presidential constitution helped to channel and frame this dialogue. The 2010 presidential constitution finally adopted at the end of nearly two decades of onoff constitutional reform eliminated holdovers from the original 1963 parliamentary constitution such as the requirement that cabinet ministers serve concomitantly as members of parliament, and provisions that the president is a member of parliament and as such can attend parliamentary 19

meetings and vote on any question before the Assembly (Art. 52, 1963 const. as amended in 1999). 29 The hope was that a clearer delineation of executive and legislative powers and a scaled back presidency would enable Kenya to consolidate the gradual democratic gains achieved since the transition to multipartism in 1991. Unfortunately, recent developments indicate that the 2010 constitutional changes have not yet succeeded in reducing tensions between Kenyatta and Odinga (2 nd generation). Odinga has called for political dialogue, outside of parliament, to discuss insecurity and governance problems, including issues with the devolution process and ongoing corruption. In the absence of dialogue, Odinga has promised mass action to force the government to the negotiating table. The government has retorted that the issues raised by Odinga can be addressed in parliament (Daily Nation, June 30, 2014). Kenya s fledgling democratic institutions evidently still struggle to effectively channel elite competition and accommodation. The revised presidential constitution has yet to reduce the perceived zero-sum nature of political power in the country. 29 The 1999 amended version of the 1963 constitution is accessible here: file:///c:/users/smoestrup/desktop/google%20drive/sync%20&%20docs%20im%20sharing/kenya_con_1999_e n.pdf. Accessed June 25, 2014. 20

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