Why BBI will not solve Kenya’s problems

The Building Bridges Initiate instigated by the Kenyan government has been hailed as a way to create more inclusive and less violent elections by those involved in it, and derided as a sham by those who are not. So what are the pros and cons of BBI, what are the implications for the system of government, and why are Kenyans contemplating major changes to political arrangements that were only introduced in 2010? Jill Cottrell Ghai explains all … 

In 2008, Raila Odinga, the defeated presidential candidate in the 2017 elections, became Prime Minister in a power sharing arrangement designed to end a period of post-election violence. Another outcome of the power sharing period was the introduction of a new constitution in 2010. The hope of many of those who recommended constitutional reform was that it would enable the country to move away from the winner takes all presidential system and so might avert future electoral violence. In the event, at a late stage in the constitution making process, a parliamentary committee initiated a shift from a proposed parliamentary system to a US-style presidential one – with the support of the contingent on the committee that came from Odinga’s own party.

In 2017, Odinga was declared the loser of a presidential election for the third time. The result was subsequently nullified by the Supreme Court, which ruled that it had not met constitutional standards. Odinga boycotted the re-run, arguing that the necessary reforms had not been implemented in order to ensure that it would be free and fair, and from that point on the opposition argued that President Uhuru Kenyatta’s landslide victory was illegitimate. Despite this, and a fraught period in which Odinga’s supporters inaugurated him as the “people’s president”, Odinga and Kenyatta achieved a rapprochement, and famously shook hands, in a process that remains rather obscure.

Kenyatta and Odinga then sponsored a process called the “Building Bridges Initiative” that involved a Presidential Task Force including politicians, lawyers, academics, bishops, and others being given the task of proposing ways to solve nine issues identified by the sponsors as causing division and unrest in the country. The issues included divisive elections and lack of inclusivity in the political system, as well as corruption.

Not long after this process started, Odinga made it clear that he hoped for the restoration of a parliamentary (or perhaps a hybrid) system.

In November 2019 the Task Force presented its report – Building Bridges to a United Kenya: From a nation of blood ties to a nation of ideals. The report itself, normally referred to as the BBI, is 156 pages long, and includes recommendations as varied as an official history of Kenya, ethics training, more money to the second level of government in Kenya’s devolved system, restoring the national capital, Nairobi, to national government control and reforming the tax system. But most attention has been devoted, in the media and elsewhere, to its proposals on the system of government.

The BBI report gives very little space to the Constitution itself, though it does lay emphasis on the constitutional preamble and its values. Oddly it does not mention Article 10, which more clearly lays out concrete values necessary for a system of governance to achieve the political vision set out in the constitution. Despite this, the BBI approach is in tune with the constitution’s whole tenor, which focuses very much on attitudes (of governed and governors), ethics and morality. Indeed, much of it is reminiscent of a sermon, though nearly 30 of its proposals would need changes in statute law, and several would require changes to the constitution itself.

Consociationalism

The BBI says their scheme is to “Do away with a winner-take-all model for the Presidency and opt for a more consociational model that works best for ethnically divided societies”.

What is this almost unpronounceable word: “consociationalism”? The underlying idea is that as an individual, your membership of your national society comes through your membership of your (ethnic) community. Political scientists have elaborated this principle as requiring first that executive power (exercised by what we usually call the government) is shared among communities. Second is proportional representation: that idea that the make-up of elected bodies must reflect accurately the votes of the electorate. This assumes that voters vote on ethnic lines, perhaps even have parties that operate on ethnic lines. Finally, consociationalism requires (in its classic form) that communities have a high level of self-government, especially on cultural matters, including perhaps teaching of and in different languages in schools.

Various elements of consociationalism tend to appear in societies at serious risk of disintegration or conflict because of ethnic, or religious, divisions – places like Lebanon, Belgium, Northern Ireland, Ethiopia, and Bosnia in former Yugoslavia. It is hugely controversial, and its success is hard to judge, partly because it is hardly if ever fully implemented and because countries where it operates are particularly vulnerable, as well as because countries are not laboratories. They also tend to change systems when they are particularly at risk.

At present, the Kenyan constitution is not consociational. It does try to recognise community loyalties, through provisions on culture and language, and encouraging traditional dispute mechanisms. And the provisions on elected and appointed bodies reflecting the diversity of Kenya have a slight consociationalist tinge. At the same time, the decentralization of power to 47 counties brings in a degree of federalism.

But in its attempt (not very successful) to ban ethnic parties, its stress on the use of English and Kiswahili at official levels, and indeed in its efforts to keep the cultural at the personal level rather than the political, the constitution is anti – consociational. It does not have “proportional representation”, and it does not guarantee an executive in which power is shared on an ethnic basis. As a result, it has left key elements of the winner-takes-all model intact.

The BBI’s proposed model of national government

Quite rightly, the Task Force says “The Presidency is the highest office in Kenyan politics. Competition for it is the leading contributor to divisive and destabilising elections”. The solution is supposed to be that this office is less appealing because there are other offices to which leaders can aspire. Apart from the Deputy President, there is to be – after thirty off years of discussion – a Prime Minister (PM).

But is this move “consociational” or likely to avert the risk of electoral violence? Let us suppose that, as in 2017, two large parties or coalitions face each other. One wins, the other loses. The President must choose a Prime Minister who must be an MP (so presumably not a disappointed presidential candidate – unless the present ban on standing for election for both simultaneously is removed). That person would usually be from the same party as the President, except in the unlikely event that the President heads a different party from the one that wins the majority of seats in the National Assembly. The President then appoints (consulting the PM) various Ministers (who might come from inside or outside Parliament). So there is a good chance that the the addition of a Prime Minister will do little do ensure inclusive government in practice.

It is also unclear whether Kenya needs new laws or would actually benefit better from the proper enforcement of existing ones. Already the Constitution says that the Cabinet should reflect the diversity of Kenya. The BBI does not copy the Nigerian consociational feature that says there must be a Cabinet member from each part of the country – which may not be a good idea in any case – which means that it is not clear how it really improves on what the constitution already stipulates.

What would happen to the disappointed presidential candidates? The second placed candidate in the presidential race would get the consolation prize of being Leader of the Opposition and ex officio a member of Parliament (with or without a vote is not clear) but would not be in government. If the parliamentary election voting had been close, the Leader of the Opposition might head a large section of the National Assembly. If the best loser’s party actually won a majority in the National Assembly – which is a unlikely occurrence but not impossible – he or she would be Prime Minister, and so might be able to exert a greater influence over government decisions and policy. But when Odinga was PM under the power sharing agreement one of his main complaints was that in reality power remained vested in the presidency, so it is unclear how such an arrangement would work in practice. Such a situation would also result in the rather absurd situation of a member of the president’s party taking up the position of Leader of the Opposition.

Is this what the BBI envisaged? Surely not. Without saying so, they clearly anticipate one of the main features of the consociational scheme without actually introducing any institutional mechanism to guarantee it, namely a Grand Coalition of almost all the major groups. Such a coalition would agree who among them is to be Presidential candidate and running mate, and who would stand for Parliament and become Prime Minister, assuming their coalition wins both presidency and most parliamentary seats. In other words, anybody who is anybody in politics would be on the same side.

There are two obvious issues with this. The first is that it starts to look rather like a one-party state. The second is that the last three elections have seen heated competition between two rival coalitions of roughly equal size. It seems unlikely that the next three elections will see a much greater degree of political unity.

President/PM relations

Has BBI succeeded in removing from the Presidency the aura that makes it the prize in Kenyan electoral politics?

It is hard to see how. For a start, let’s ask if you have any idea who the Prime Minister of Tanzania is. Why do we ask? Because the BBI says it is proposing a Tanzanian style PM. In fact, it is not strictly speaking the same as that model, because the Tanzanian PM does not have to be the head of the largest party in parliament. But the point remains: being a Prime Minister in a historically presidential political system usually means being ignored.

At the same time, the BBI gives no idea of any reduction in the powers of the President that would reduce the centrality of this position to Kenyan politics. The President will remain  Commander-in Chief and Chair of the Cabinet, and would be in charge of policy making, the PM’s role limited to coordinating the carrying out of policy, through the ministries.

There are other weaknesses to the BBI’s proposed model. The President would be able to dismiss the PM, who could also be removed by a vote of no confidence by the MPs. Quite what the point would be of the President’s removing the PM is unclear – since it seems the PM could not be replaced with anyone who did not have the confidence of the majority of MPs. But this provision would no doubt be a stick with which the President could intimidate the Prime Minister nonetheless. Moreover, while the Prime Minister is accountable to both President and Parliament, the President remains almost unaccountable in-between elections.

Given this, the pecking order still seems to be clear, with the President being handsomely paid while the PM would get only the parliamentary (MP’s) salary. It therefore seems very unlikely that the opportunity to be PM, or Leader of the Opposition, would prove to be an attractive option to a losing presidential candidate.

Of problems and solutions

What BBI has proposed is not a true parliamentary system. Labels do not really matter, but it is hard to see the proposed fudge as being any sort of solution to Kenya’s problems. Nor is it a home-grown, despite “autochthonous” being the BBI’s second political theory word of choice.

It is also not really consociational: Parliament would be elected by 290 constituencies on the first past the post basis, and so there would be no proportional representation. And while BBI stresses the need for equally sized constituencies, it also pledges to preserve existing constituencies – another political fudge that undermines any good intentions.

The BBI lists many problems, but fails to engage with the ones that really matter. The biggest challenge facing the country is that winning elections, especially for President, is so highly desired that people will do almost anything to succeed, while those who lose never really accept the declared outcome. Nothing proposed seems likely to seriously change that situation. So despite all the talk, we still lack a solution to the issues that really matter.

Jill Cottrell Ghai has been a Professor of law in numerous universities, including Ife and Ahmadu Bello Universities in Nigeria, Warwick University and University of Hong Kong and now works with the Katiba Institute.