2002 POLITICAL TRANSITION (MOI-KIBAKI)Vojin
Dimitrejic
[16]
has asserted, “In those countries where the former establishment
was sufficiently strong and conceded pluralist democracy under
strong internal and foreign pressure, the regime did everything to
present new democracy as chaotic mockery. An array of silly,
marginal parties and eccentric candidates contributed to this
picture.” The foregoing scenario was replayed in Kenya during the
1992 and 1997 general elections. Both elections came in the wake of
introduction of multiparty democracy in the country following the
repeal of section 2A of the Constitution. This had been occasioned
by the Moi administration bowing to concerted pressure from various
internal and external bodies including the International Monetary
Fund, the World Bank, Western diplomatic missions, religious
organisations, civil society, academics and the common citizenry to
allow for the opening of the democratic space. Thus,for the first
time in post-independent Kenya, pluralism was allowed in Kenya
politics with various parties emerging to contend for political
power.However,the incumbent president drawing from his long
political experience manipulated the already uneven political
playing field to his advantage thereby winning both elections in
succession.
In both elections Moi capitalised on the tribal
factor of the Kenyan politics to divide the possible voter base of
the then formidable opposition. Further he encouraged the formation
of many political parties with no clear ideological or political
vision which all sought to produce the incoming president. Many of
such parties and their leaders were fed by mere greed for power and
ethnic chauvinism that played to the advantage of the incumbent
president as it weakened the appeal of the opposition to the masses.
This enabled Moi to be re-elected on a plurality of 28% in 1992 and
a relatively similar margin in 1997.It has been said that, “As a
nation passes through different cycles of its existence, its systems
of Government will be affected accordingly. Every deep crisis with
it a challenge to normal forms and procedures of democratic
rule.”
[17]Kenya
as on the General Election day of 28th December 2002 had not enacted
clear provisions with respect to the momentous anticipated political
transition. It was indeed a momentous time as the incumbent
president, holding all factors constant, was expected to retire from
active politics by virtue of section 9(2) of the Constitution having
served the requisite two terms.
The 2002 transition period
saw some developments akin to those in the 1963/64 one leading the
period to be coined as the second Liberation of Kenya. For instance
this period saw the overhaul of the leadership status quo with
defeat of the then ruling class by the opposition. Also, the 2002
elections just like the 1963 elections saw a marked reduction in the
influence of the largely tribal political parties and their
replacement by fewer, larger parties with a seemingly national
outlook. Thus, the various arguably tribal parties such as
Democratic Party of Kenya (DP)-Kikuyus, Ford Kenya-Luhyas, and the
Social Democratic Party (SDP)-Kambas, teemed together with the KANU
defectors going under the Rainbow Alliance to win the elections
under the National Rainbow Coalition (NARC) banner against the then
ruling party, KANU.The latter had been hugely weakened by the
en
masse defections of the Rainbow luminaries as a result of the
anointing by the outgoing president of a son of the First Kenyan
president,Uhuru Kenyatta,as his preferred successor a move seen as a
betrayal by his hitherto loyal aides including the then
Vice-president,Musalia Mudavadi
[18],
the immediate former Vice president, George Saitoti and several
cabinet ministers led by Raila Odinga and Kalonzo Musyoka.
Another
feature of the 2002 transition that reflected the 1963/64 one was in
the manner in which elections and actual handing over of power was
carried out. As regards the elections, the protocols, niceties and
merits determining the validity or otherwise of persons seeking the
various elective posts were mainly disregarded in light of the
euphoric wave that was sweeping the nation. Thus, candidates
standing on Narc tickets in Pro-NARC zones like Nyanza and Coast
provinces easily won their seats notwithstanding their moral or
educational suitability thereon and vice versa in pro-KANU zones
like Many parts of the Rift Valley, Central and North-Eastern parts.
Thus, Kenyans seemed to have lost the all-important lessons learnt
from the independence transition that it would take more than a mere
change of guards to make a difference on their lives. Thus, arguably
the removal of Moi from power was no more than an act of disposal of
a hated despotic ruler rather than the reversal of a socio-political
system that was in dire need of a radical overhaul. Thus Kenya fell
in line with the assertion made by Hermit,
[19]
that, “the salient feature of political change.. ....in developing
third world countries has not been the development of strong
political institutions and the integration of these typically plural
societies into viable national political systems but the process of
political decay.”
The Moi-Kibaki transition was arguably
not properly and Constitutionally managed. My argument is premised
on the fact that the outgoing Moi-administration was perceivably
reluctant to provide proper handing over of power as it was still
trying to come into terms with its unprecedented defeat. Also, the
incoming NARC Administration and its supporters were anxious to have
power transferred as soon as possible because of the demonstrated
reluctance of the former regime to hand over power. In addition, the
new regime was justifiably afraid that the outgoing administration
would if given ample time attempt to establish networks to frustrate
the measures expected to be put in place by the new administration
to redress the various historical injustices perpetrated by the Moi
regime. This was to be done in fulfilment of the pre-election
pledges it had made to the electorate. This factors contributed to
the chaotic and hurried manner in which the transition was conducted
in utter disregard of laid down protocol though fortunately it was
without major violent scenes, a fact which is to be attributed to
the professional nature of the armed forces under the able
leadership of General Raymond Kibwana (now retired) which remained
strictly aloof of the going-ons.
ELECTORAL AND STATUTORY
LAW RELEVANT TO TRANSITION:THEIR STRENGTHS AND WEAKNESSESThe
Kenyan law with respect to the transfer of power to an elected
president is basically contained in the constitution, the National
Assembly and Presidential elections Act and the Promissory Oaths
act. Of most importance to the present discourse are the
constitutional provisions with regard to the conduct of presidential
elections and for the period of transition pending g the handing
over of power, or if you may will, the swearing in of the
president-elect.essentially,as per the constitution, the
presidential term of office is tied to the life of parliament such
that whenever there is a general election, there is a presidential
election. To be sure, section 5(5) of the Constitution provides,
thus, “Whenever parliament is dissolved an election of a president
shall be held at the ensuing General election.”Thus, by virtue of
this section as read together with section 9(1) as well as section
59(4) of the constitution it suffices to say that the parliamentary
and presidential terms are inseparable such that the dissolution of
parliament automatically brings to an end the presidential term of
office. Thus, in managing any political transition it becomes
critical that the two terms should run concurrently. However,
ideally wherever the parliamentary and presidential terms are left
to run their full course uninterrupted, they would expire at
different dates: the parliamentary one being the last to expire.
An
illustration of the foregoing assertion can be taken of the
1998-2002 term of office of then president Moi and the parliamentary
term at the same period in time. Moi was sworn in as President for
his final 5-year term of office on 5th January 1998
[20]He
was ineligible to seek re-election upon the expiry of this term of
office under section 5(3) of the constitution but was required under
section 9(3) of the same to continue in office until the
president-elect assumed office. Thus, his presidential term of
office conceivably was supposed to expire on the midnight of 4th
January 2003.For the same period, his parliamentary term of office
took effect as from 3rd February 1998
[21]
upon the swearing-in of the Members of Parliament
[22].
Thus, his parliamentary term, just like those of the other MPs,
commenced on that date and his term expired on the 2nd February
2003:28 days after the expiry of his presidential term of office.
Thus, had the president not dissolved parliament immediately before
or on the expiry of his 5-year term, the life of parliament and that
of the presidential term would not have been coterminous leaving
room for a constitutional crisis. Thus, in future it would be
critical for the sake of orderly transition of presidential powers
to the president-elect that the timing of both presidential and
parliamentary elections should be carefully looked at.
The
most critical aspect of political transition from one presidency to
a new one is the issue who legally executes the presidential powers
and functions during the transitional period. One might be tempted
to say that upon one being declared as the president by the chairman
of the Electoral Commission of Kenya (ECK), he/she immediately
becomes legally entitled to execute any of the presidential powers
and functions. Such reasoning would be informed by section 7 of the
Constitution, which provides, thus, “A person elected as president
shall assume office as president as soon as he is declared to be
elected”. However, the foregoing argument would have lost sight of
section 8 of the constitution which provides that, “A person
assuming the office of president shall before entering upon the
office take and subscribe to the oath of allegiance and such oath
for the due execution of his office as may be prescribed by the
constitution or under an Act of parliament.”Thus, there is time
lapse between the time of declaration and time of actual assumption
into office in which time there is no clear wielder of the
presidential powers. However, the constitution allows the outgoing
president to “continue in office until the person elected as
president at a subsequent presidential election assumes
office.”
[23]This
is meant at avoiding a power vacuum and ensuring continuity as well
as smooth transition. However,the provision is one open to possible
abuse in its failure to stipulate the maximum duration of
holding-over at any given time.Thus,the outgoing president may rely
on it to attempt to cling onto power beyond the reasonably expected
transitional period on the pretext that his successor is yet to
assume office. This may even tempt such outgoing president to use
the military arm of government to defeat any attempt at the handover
of the instruments of power
[24].
Another
fundamental issue to any constitutional lawyer worth his salt would
be one with regard to what extent can the incumbent president
exercise the presidential powers during the transitional period and
what restrictions are legally in place to check such exercise of
power. For, instance whether he is still the commander-in-chief
during the holding over period, Equally important is the issue of
whether any of the political appointments to constitutional offices
or presidential acts of clemency and pardon of convicted offenders
during the foregoing time are clothed with legal validity and thus
binding on the incoming regime or whether they are subject to
ratification or rescission by the incoming administration as soon as
it is sworn in. The same issue arises with respect to contracts and
industrial agreements entered into by the outgoing president
personally or through his appointees during the transitional period:
whether the new regime is bound to honour them. The jury is still
out on these issues and thus a legal redress of this lacuna in
constitutionality is long overdue. However, note should be made that
with regard to those appointments made by the outgoing president to
offices with constitutionally entrenched security of tenure, such
cannot be terminated arbitrarily but must be done only where the
relevant laws sp permit and following the laid-down procedure. Also,
such matters should be handled delicately giving due regard to the
tribal undercurrents which attend any political happening in the
country.
It has been a point of academic contention as to
whether it is legally mandatory or it is merely a matter of custom
for there to be a formal ceremony of handing over of the instruments
of state power and inauguration of the president-elect. It is
arguable that given that the constitution only recognises the taking
of the oath of office and allegiance before assumption into office
as mandatory, then the handing-over ceremony is merely
administratively desirable rather than legally mandatory. Hence,
such a ceremony can be dispensed with if the circumstances do so
dictate as the right to exercise presidential powers does not
emanate from the conducting of such an inauguration ceremony. It is,
also, a matter of scholarly as to what instruments of state power
are supposed to be handed over to the new president by his
predecessor during the swearing-in ceremony.
The foregoing
analysis of political transition has particularly restricted itself
to political transitions following the ordinary expiry of
presidential term of office and the election of a new president.
However, equally critical is the issue of transition upon the
premature termination of the incumbent president’s term of office,
for instance through his death or resignation. The constitution is
relatively alive to this issue. It provides that upon the president
passing away or tendering his resignation to parliament before the
expiry of his scheduled term of office, the Vice-President, or if he
later declines a minister appointed by the cabinet shall exercise
the presidential functions for a period of ninety days after which
elections shall be held. The “stop-gap” president is
constitutionally restricted in the extent to which he may exercise
his presidential powers. For instance, under section 6(3)(b) he
cannot dissolve parliament. This create some tricky situation in
that parliament would then be allowed to run its full term with
parliamentary elections being due within ninety bays after automatic
dissolution of parliament.
[25]However,
the presidential elections to fill the vacancy in the Office of
President would have to be undertaken within ninety days after the
death or receipt of letter of resignation. It must then be borne in
mind that upon the aforementioned automatic dissolution of
parliament, a presidential election would have to be undertaken by
virtue of section 5(3) of the consitution. Issue then would be
whether the person so elected after the resignation or death of his
predecessor would be considered to have run one full term
irrespective of the duration spent in office. A serious
constitutional difficulty might thus arise where the incumbent
“stop-gap” president insists on serving his full, five-year term
parallel to the parliamentary term.
I
RECOMMENDATIONS AS TO
REFORMS NEEDED TO BE MADE TO ENSURE ORDERLY TRANSITION COME 2007As
my analysis thus has shown, Kenya has no clear provisions with
respect to a smooth transition. Thus,it suffices to say that as
President Kibaki’s draws to its Lego-constitutional completion,
there is conceivably little that has been done legally in preparing
the groundwork for the transition to a new regime. It cannot be
gainsaid then the importance of enacting transition-related law to
act as a guide path and stabilizer before the challengers take
advantage of these changes and create transitional instability. In
this respect, various recommendations are made herein.
It is
uncontested presently to assert that, “…there is now broadening
support for the view that ….a regime must attain power through
periodic and fair elections and not through military takeovers for
it to be considered democratic and legitimately fit to claim stakes
in any political dispensation.”Thus, the aspect of the conduct of
elections should be well catered for in our laws to fill the various
lacunas therein. Idealy, a properly managed constitutional handover
and succession entails the gradual introduction of the likely
presidential winners on major issues of primary national importance,
such as national security, finance etc. beforehand possibly before
the elections as is the case in the United States of
America(USA).However, the way it is presently in Kenya, such an
ideal scenario may be unattainable in Kenya given the diversity of
the political parties fielding presidential candidates individually
with no clear frontrunners. For instance where elections to be held
today, it would be extremely difficulty to pinpoint who exactly is
the frontrunner. For instance, would it be Uhuru Kenyatta or William
Ruto in KANU, Kalonzo Musyoka or Raila Odinga in LDP or even Kibaki
or Saitoti in NARC? Also, Kenyan politics are unpredictable and a
frontrunner may emerge without prior notice a case in point being
Uhuru Kenyatta’s meteoric rise from a mere local authority
chairman to become the KANU’s presidential candidate in 2002,all
within a matter of a year. It has been argued, “the current
abundance of political parties tends to confuse the voter.”
[26]Thus,
legislation ought to be made to limit the number of political
parties liable to produce presidential candidates and as well
provide for qualifications for prospective presidential candidates
in line with societal changes. Legislation is also in order as to
the procedures to be followed in the event of there emerging no
clear winner during the run-off elections. This is because the
Kenyan Constitution under section 5(4) only provides for the run-off
elections but does not envisage the event of no winner emerging
creating a possibility of a major crisis.
It has been
recommended
[27]
that in the event that Kenya is to have to undergo the actual
transition from the present Constitution to a new one in the future,
an independent body should be established and be tasked with
managing the transition. It is my considered view that the same
should be directed at the presidential transition come 2007 and
other periods of transition thereon. Such a body, as was proposed by
Kibe Mungai, can take the form of a transitional Government of
National Unity headed by the incumbent president or the speaker or
the Chief Justice with a certain number of Ministers at least 25% of
whom should be elected by ¾ majority vote of total members of
Parliament. Various designated interest groups such as religious
organisations, the civil society, the Law Society of Kenya (LSK) and
other interest groups as may be prescribed by parliament could
nominate the other 75%. However, in appointments of such persons,
regard must be had to regional balancing, gender parity and
professional expertise. The foregoing body would be tasked with
clearly defined powers of deliberating and deciding on matters of
particular importance to the transition. Such would include making
the logistical and institutional preparations for the handing over
ceremony to ensure its properly co-ordinated. Its decisions would
have to be decided on a majority basis on matters of procedure and
substance to avoid abuse of power during this critical period.
As
Mamadou
[28]
has observed during the transitional period, “..confrontations
seem to focus on….the advantages to be given to interested parties
and the set-up and redistribution of public resources” The issue
of the disposal of public property is a critical one which has been
open to abuse for long now because as Nwabueze has observed, “..the
real enemy…is not power itself but insufficient restraint upon
power”
[29].
A provision should be made in the Kenyan laws that no state or
national resource be dispensed with during the transitional period.
The same should apply to the entry into contracts by the outgoing
president or his appointees during the holding-over period such that
except with relation to contracts on services that the state cannot
do without, no contracts should be entered on behalf of the state at
this period in time. It is also of critical that except for those
posts, which cannot do without a person in place to so run them, no
appointments should be made to senior government offices by the
outgoing president so as to avoid abuse of this presidential
executive power at the transitional period. However, allowance can
be legally made to have the outgoing president name replacements
where the incumbent office holders pass away or become permanently
incapacitated to carry their official duties. However, such
appointments should be tabled at the initial sittings of the
incoming parliament for ratification or otherwise.
It also
essential that there should be stipulated the actual date of
swearing in which should also be the date when the holding over
period for the “stop-gap” president or the outgoing president.
This would be in line with the practice in the U.S where there are
fixed presidential terms. Under the 20th Amendment to the US
Constitution, it is provided that both the Presidential and
vice-presidential terms of office, both of which are constitutional
offices ought to always come to an end on 20th January this is even
though the presidential elections are ordinarily held in November.
In England, also it is constitutionally provided that upon the
ruling party losing an election, the incumbent Prime Minister
immediately ceases to exercise all the powers of that office and
begins immediate preparations of vacating his office. A good model
which can be adopted are the provisions which were made in the
infamous Bomas Draft Constitution of Kenya which set specific dates
for the swearing in of the president-elect into office. This clarity
in legislation would guard against the incumbent president failing
or refusing to hand-over to the president elect. Provision should
also be constitutionally made on what instruments of power the
outgoing president should handover to the president elect during the
inauguration ceremony.
Lastly, in the event that the 2007
transition is conducted without the Government of National Unity,
there should be established certain checks on the exercise of
presidential power during the transitional period especially before
the president-elect has yet to assume full presidential powers. It
should be borne in mind the assertion by Montesquieu, thus,
“Constant experience shows us that every man vested withy powers
is liable to abuse it and to carry his authority as far as it will
go..to prevent this abuse it is necessary from the very nature of
things that one power should be a check on another.” Note that at
this time, parliament, the relatively effective check on the
executive arm of the state, has already been dissolved and it is
only the judiciary which is still in operation, the latter being a
passive institution.”Also.the incoming legislature will only have
to subsequently deal with matters “fait accompli”, that is
already executed by the executive, such as for instance ratifying
appointments made when it was dissolved. This calls also for the
civil society and professional groups like LSK to remain alert and
keep on their toes to check any such abuses. For as Alexis
Tocqueville asserted, “..it is not only laws that determine the
destiny of peoples, no, it is not the mechanism of the laws that
cause the great events of the world: what does decide events,
gentlemen,is the essential spirit of Government: keep your laws, if
you like, though I think you would be making a great mistake in
keeping them, even keep the same men if you want to …but for God’s
sake change the spirit of government, for the spirit ,I repeat, is
leading you to the abyss”.
[30]
This change an only be achieved through constructive criticism and
activism by Kenyans of all walks of life.
