When the KANU National delegates’ conference unanimously approved the adoption of multi-party democracy in Kenya it became necessary to amend the constitution to pave way for the operation of competitive politics. With the Constitution of Kenya Amendment Bill No 2 Bill 1991, the Attorney-General  Amos Wako, it has been widely felt, rightly or wrongly, made an inexhaustible work of it and thereby placed the county on the road towards a possible constitutional crisis.

Various amendments started by President Jomo Kenyatta’s government and continued by President Moi’s have been made over time with the enormous aim of relieving the constraints on the government and politically strait-jacketing any opposition that may crop up. These amendments culminated in the infamous section 2 (A). The end result has been today’s constitution which has no provisions that envisage government under one party.

Analysts today say that the birth of the Kenya Constitution as it stands today might have been engendered by the fact that prior to the repeal of the notorious Section 2 (A), it was not only a taboo to anticipate a swing to multi-party politics in Kenya, but was also a cardinal sin, almost bordering on treason to harbor such thoughts. Thus the Constitution of Kenya remained like the biblical Ark of the Covenant festooned within a wall created by fire-spitting hawkish politicians and what have today come to be known as single-party zealots who fanatically ensured that it was not defiled by any streak of pluralism.

The events leading to the repeal of the hates section were not in any way savoury. Advocates of pluralism who have for a long time remained under the barrel only mutely pronouncing their multi-party slogans(while others like Shikuku and Oginga actually came out open to take the establishment by the horns) are today coming out in the open to describe the constitution and the single party system in words they could not have used before. Most of these have likened the situation prior to the amendment to the Orwellian one where any opposition to the government real or imagined amounted to what George Orwel author of Nineteen Eighty-Four called “thought crime’. They have just stopped short of describing the operations of the “thought police”.

When the delegates’ conference then approved the multi-party politics, the Attorney-General’s obligation was to turn these series of amendments that had turned Kenya into an unassailably one party state. So he repealed the offensive section. But legal experts say that this could not be done by merely repealing Section 2(A) and the opening up of Presidential and National Assembly elections to other parties. In the present state of the constitution, the reversal would come short of adopting an entirely new constitution. Thus the Constitution of Kenya Amendment No. 2 Bill 1991, has been seen from various quarters as hasty, ill-considered and shoddy, something that has, rightly or wrongly been put down to the impatience of international donors who brought considerable pressure to bear the government.

Though this has been denied, the prevalent feeling among some keen observers is that some pressure or otherwise propelled the Attorney-General to act hastily to arrest the terrible section. “The repeal Section 2 (A0 to restore multi-party democracy in Kenya is not enough”, says Mr. Charles Nyachae, Chairman of the International Commission of Jurists. “It must be accompanied by other changes if the constitutional amendment is to be meaningful.”

In principal, the present Constitution provides a system of government that is a mixture of presidential and parliamentary systems. It attempts to merge the concepts used in the United States of America on the one hand and the United Kingdom on the other. In Kenya the president must not only be elected as president in a presidential election but must also be elected in his constituency as a Member of Parliament. And upon election, he forms his government from members of the National Assembly as stipulated in Section 16 (2) of the Constitution. In the on-coming multi-party democracy, this system, observers have predicted might be chaotic. The hurdles too are legion and manifest. Observers predict that the first stalemate is likely to emerge if the winning party in the presidential election was unable to garner enough seats to form a government. And this, they say, is quite possible.

It is a cardinal rule in multi-party politics that the party with the majority members of parliament forms the government. Analysts have however expressed fears that it is possible under the present Constitution to have a president whose party conducts only a minority in Parliament. “The Democratic Party, or the FORD might win the presidency but he majority of the seats could be grabbed by KANU”, says a legal and political expert who requests anonymity. “To then say that the party that won the presidency is entitled to form the government amounts to short-changing the most popular party.”

Such a president who goes to parliament with a minority party would be hard put to it to form a government. “He may very well be the sole representative of his party”, he adds.

Section 16 (2) of the constitution states “The president shall appoint ministers from among the members of the National Assembly”. Section 19 (1) says the same of assistant ministers. The4 question of where this probable minority president would derive his government raises its head and provides a chilling answer to such a situation, namely that he would as a matter of course be forced to derive his government from the opposition. Can then an opposition party bring down a government in which it is highly represented? Will that mixed government speak in one voice and follow an agreeable policy? These are questions that political and legal experts feel should be addressed urgently. They are nevertheless tricky.

Political observers seem generally agreed that a mixture of systems of government where the president is a member of parliament makes nonsense of the doctrine of separation of powers. “When the legislative and executive powers are united in the same person or body,” lamented Montesquieu in1748, “there can be no liberty.” Our own history has shown us how this can be.

To bring the constitution in line with the proper practice, analysts feel, the Attorney-General should have totally separated the Executive and the Legislature where upon he could then totally adopt the American system where the president runs the government using the civil service. Better still, he could maintain the mixture by bringing back the office of the Prime Minister. This, they feel would give the most popular party a chance to rule and the opposition a chance to effectively pass a vote-of-no-confidence.

Such a vote is vital. It is the ultimate sanction against a government in power under a multi-party democracy. “If the government is too heedless of criticism” lamented the speaker of National Assembly in 1964, Humphrey Slade, “or inadequate explanation is made in its answers to parliament, it may find that one day, it governs no more…A vote of no confidence in this house can show that it will no longer be the government of this country because it won’t have the support of parliament.”

But Slade’s prognosis fo0r a vote of no confidence as the only way to bundle an inept government out of power is to say the least chimerical. It is not thinkable either, for the present constitution doesn’t provide for it. To do so would be unconstitutional and may not even succeed.

For one, the president of the day can torpedo any attempts to pass such a vote by easily and swiftly dissolving the house. He has the powers and in doing so, he does not have to resign. The only sanction against his government thereby becomes illusory. And even if the president were to resign, the vote would merely drag 6the country through another presidential election resulting in the disruption of the country’s governance. This kind of situation would to a large extent deter the parliament from exercising the vote as often as is necessary.

So what are the options?

Analysts feel that the vote can only be properly exercised with the institution of a Prime Minister. Then, the opposition party would immediately assume power with its shadow cabinet, something that would prevent the occurrence of a power vacuum even were the government to be brought down in this fashion.

The amendments must also consider the issue of special majorities required by a party in order to be a ruling party. In circumstances when these are not achieved, it has variously been felt that the constitution must have provisions under which a coalition government could be formed. It must also provide for the situation where parties cannot agree on a coalition. Analysts further feel that the Attorney-General should also have repealed Section 33 providing for nominated members of parliament. This section reads “There shall be twelve nominated members of the National Assembly who shall be appointed by the President…” But the question whether to allow a party with a minority to increase its powers in the National Assembly and whether the composition of the legislature should not be the sole decision of the electorate makes it imperative to review this particular section which operates in multi-party politics to give undue advantage to the presidential party above other opposition parties.

As it is now, the Attorney-General’s amendments leave presidential elections to tribal mathematics. Section 5 of the constitution provides that “The candidate for the presidency who receives a greater number of valid votes cast in the presidential election than any other candidate shall be declared to be president.”

The intricacy of this particular section is not hard to discern. It makes it possible for a presidential candidate with a high tribal backing to ignore minorities. Legal experts feel that the Attorney-General should have altered the system to provide for one where a president elected depending on the total number of the constituencies he wins. This would make the smallest group of people so long as they are in a constituency determinant in a presidential election. Under the present constitution, it has been observed that support of Kenya’s largest ten tribes could see one through a presidential election, more so because the level of literacy among these tribes would secure a higher turn-out. That would mean that 32 tribes might have no say in the election of their president.

Moreover, it ids felt that the powers of the president to assent to a bill under the constitution would threaten good governance in a multi-party democracy.

A bill passed by parliament must be presented to the president for his assent before it becomes law. The constitution currently does not provide for the probable situation where the president denies his assent. This large lacuna in the constitution, analysts feel, might lead to a situation where a president from a minority party can frustrate the wishes of the majority. “What the constitution is assuming now”, says a political analyst, “is that all presidents will be benevolent and well-intentioned.” Under the single party however, this problem cannot arise due to the unity of purpose in multi-party system.

The Local government question

Multi-party politics must also be addressed at a local government level. Local governments must now become a constitutional issue where they were not. What will be the relationship between the central government and local government under other parties? And the role of civil servants?

Under the constitution, a minister for a local government has such wide powers that the possibility of his acting maliciously towards local governments controlled by the opposition parties cannot be discounted. He could for example dissolve them. The right of opposition parties to compete in local government elections becomes not only a matter of guarantee, but it must also be inviolate in the constitution. “The local government themselves must be autonomous for if multi-party democracy checks excesses in central government, it can do so in local governments.”

Could Attorney-General, in making amendment have failed to see the trees for the woods? Or did he overlook the backlash that the lacuna in our constitution might provoke? These are questions analysts are struggling to answer. They could be wrong or right, but they prevalently feel that the Attorney-General failed to appreciate the amount of overhaul required to shift the country from one mode of government to another.

He might probably have let KANU decide for Kenya what constitution the country needed to enter into multi-party democracy. But there can be no doubt that the issues which the constitution does not address today must be addressed anyhow to pre-empt  a catastrophic constitutional crisis or  a hasty frog-jump later to try and remedy a situation left to rot for far too long. And most critics feel that the National Convention is just one in a number of ways that can provide a forum for a compromise on these issues. A National Convention or not, analysts feel that a serious regard to our constitution is necessary. It must be given now; or later at a price.