Overwhelmed by claims of corruption and executive complacency, jubilee claims that Uhuru is powerless to do anything about corruption, because the new constitution ‘ties his hands’. On the other hand, CORD claims that executive power is being misused to stifle constitutionalism and that all independent institutions have become marionettes of the executive. These are two contradicting and extreme positions, and they cannot be true at the same time. The question is “who’s fooling who”?
My contention is that they are both fooling the people of Kenya and frustrating the onset of the new dispensation envisaged in the new constitution. On the one hand, jubilee possesses executive power but it is hopelessly handicapped by tribalism, corruption and ineptitude, and the new constitution has become the easiest excuse. Jubilee knows that ethnicity and corruption are their bedrock. They can’t shake them and survive. It is the proverbial paradox of riding a tiger, you cannot disembark, it will eat you. On the other hand, CORD, locked out of power, would like to undermine the authority of the new constitution to the full extent possible, including mis-reading and mis-interpreting it to reinvent the constitutionally irrelevant careers of their principals Raila Odinga and Kalonzo Musyoka. I will explain both positions. First jubilee.
I have heard it said over and over, especially from ardent jubilee supporters, that the President cannot fight corruption. That there are institutions that have been tasked with doing so and that the President cannot order them around. This is half the argument. The full argument is that corruption is a political culture in the jubilee government. Corruption operates as a culture not just as an event or a practice, what CJ Mutunga called a bandit economy. I have made this argument in the controversial article “Uhuru, it is your ‘system ya majambazi’: Because you can’t tame its appetite for corruption, our only responsibility as the people is to vote you out! here http://profmichaelwainaina.com/2016/03/18/uhuru-it-is-your-system-ya-majambazi-because-you-cant-tame-its-appetite-for-corruption-our-only-responsibility-as-the-people-is-to-vote-you-out/
Hadn’t it been a system, it would have been possible to root out corruption through simplistic events like tabling lists in parliament, telling people to step aside and giving MPs non-existent powers to fight illegal brew. The implication of corruption as a system is that fighting it will first and foremost be a political undertaking, which will then be complemented by institutional processes. You have often heard something called “political will” to fight corruption which jubilee is said to be lacking. This is what they mean. Jubilee is abdicating its political responsibility to fight corruption and pushing the skunk to institutions, which are undermined by the same political interests. A good example is the NYS saga. When two top jubilee honchos were mentioned (you remember the live-wire?) the issue has gone silent.
To understand the context of corruption in Kenya, we need to answer the fundamental question “how is Kenyan politics played?”. It is correct to say that the fundamental construct of Kenyan politics both in CORD and jubilee and over much of the period of independent Kenya is the unholy trinity of ethnicity, impunity and mediocrity, siasa za ukabila, ukora na upuzi. This political culture will frustrate and has frustrated any bureaucratic institutions that try to fight corruption because in effect, anyone who tries to fight corruption would actually be fighting the government. This is why the only anti-corruption bodies that survive are those that do not fight corruption. They do not threaten government. Those who fight corruption are seen as threats to government and this is not a uniquely Jubilee problem. The EACC door has been revolving for almost 15 years now, and no fish, big or small, have been caught. Don’t hold your breath.
We saw that EACC was hounded and harassed in the blood-soaked coalition government. All the political big-wigs and tribal overlords were in government, a polite word for “were eating”. They felt that EACC was raining on their parade. This has actually been the problem of the regime since independence; how to fight corruption and preserve itself. Disembarking from the Tiger has proved impossible. In fact, independent institutions for fighting corruption are a fairly new invention. No institutions could do it in the past since they were mostly controlled by the executive. The matter of corruption was left to a few independent minded and courageous individuals. The government quickly got rid of them. Touching corruption is touching government and it will take you nowhere, then and now.
It is therefore true that the President cannot fight corruption. But it is not true that the President cannot fight corruption because of the constitution. He cannot fight it because his hands are tied by the political culture of ethnicity, impunity and mediocrity, siasa za ukabila, ukora na upuzi through which he rose to power and in which he is a major player. He mobilized for political office of the President through ethnicity, the evil twin of corruption and impunity. Now he is stuck with all of them. If he fights any, his government will come crumbling down. It is the old paradox of riding the tiger. If you disembark, it will eat you.
Let us however indulge jubilee’s argument that the President’s hands are tied by the constitution. If this was hypothetically true, there is a very simple and direct way of solving it: let him propose a raft of constitutional amendments that he needs done so that he can get the power he needs to fight corruption. It is his government, as he often likes to call it. He cannot call it “my government” when he is ‘fulfilling the jubilee manifesto’ and call it a ‘handicapped government’ when he is asked to fight corruption. Because the problem of corruption is a political one and not a constitutional one, he will not propose constitutional amendments because if they passed, the excuse will be gone and the problem will not be solved. He will look bad. The excuses serve him well. They will stay.
Now to CORD’s argument that ours is an imperial presidency and that the constitution is being abused by jubilee. An imperial presidency is not possible, simply because the constitution does not allow it to be. The problem is not that the presidency is imperial. The problem is that CORD and jubilee have come from the KANU school of thought and they do not have any other way of looking at the presidency and they do not have a lot of respect for the constitution. When both were campaigning in 2013, they were campaigning with the old constitution in mind being incapable of conceptualizing a new dispensation. Those who won would like to blame the new dispensation for their incompetence and inability to act on graft and those who lost, suddenly found themselves irrelevant in the new dispensation. I have dealt with the former matter. Let me explain the latter.
Nothing exemplifies the extent to which the new constitution upset the old order for CORD than their insistence on opposition politics. The new constitution does not recognize anything called opposition, it simply does not exist. The title “leader of the opposition” is a pigment of CORD’s imagination. Ours is a presidential system as envisaged in Chapters 7, 8 and 9 of the new constitution. What this means is that the president is the head of state and government and exercises executive authority (Article 131). The executive is checked by parliament which has the majority and minority, NOT the fictional OPPOSITION. Article 108 (4) states:
The following order of precedence shall be observed in the National Assembly-
- The speaker of the National Assembly
- The leader of the majority
- The leader of the minority.
If then we were to follow the constitution, after losing their presidential bid, Kalonzo Musyoka and Raila Odinga have no official status recognized in the new constitution. They should have gone home and found something to do in retirement. As far as the constitution goes, they are persona non grata. Period.
That is the supreme law of the land. Sorry if Kalonzo and Raila don’t like it.
Dida, Peter Kenneth, Prof. Kiyiapi, Musalia Mudavadi, Paul Muite and Martha Karua understood this. They have accepted their status. Kalonzo and Raila have refused to accept the commoner status, prescribed for them by the constitution. There was need for something to be invented to keep Raila and Kalonzo relevant. They even tried the ridiculous idea of making Raila a Senator. You can now see why. But I digress. Sidelined and emasculated by the new Constitution, they naturally fell back to their KANU days and invented the opposition. It is unconstitutional. They have used their “opposition” status to harangue the government at every turn, accusing the government of abusing the constitution which does not even recognize their fake status.
The second illustration is their insistence that they will not follow constitutional means to disband the IEBC. That one is self explanatory. The tribal bigwigs in the political class never intended to follow the constitution on anything, unless is favors them. They have never been constitutionalists. They have been and remain against anything that did not fit their personal political ambitions.
So on one hand, you have Uhuru and jubilee, blaming the constitution for political problems of their own making, and on the other you have Kalonzo and Raila inventing non-existent and unconstitutional positions to salvage their floundering political careers and remain relevant. It is therefore important for CORD to shout that there is an imperial presidency and that they are the equal counter-measure to that imperial presidency, “the government in waiting” to justify their imaginary political positions and a deluded sense of self importance. It is as if the more they shout about an imperial presidency the more legitimate they feel, since constitutionally, they have no identifiable political portfolio.
So, for jubilee, the constitution is an irritant. But more importantly an excuse not to disembark from the tiger and get eaten. For CORD, the constitution is an obstacle and an impediment to their floundering political ambitions. When CORD tribal kingpins accepted the new Constitution in the blood-soaked coalition government, they actually thought they are the ones who would be in power. Bad miscalculation. One political commentator said that when making laws, make laws that you would feel comfortable with, even if they were being applied by your worst enemy, don’t make the laws you would like to apply on your worst enemy. CORD realized their mistake when they were locked out of power. They started to hypocritically agitate for a parliamentary system of government. Too late.
So what do we end up with? A political class that is fooling Kenyans. A political class with a constitution that is counter-intuitive to their idea of power as learnt in KANU. I have argued before that both CORD and jubilee are mired in politics of ethnicity, impunity and mediocrity siasa ya ukabila, ukora na upuzi. And that is how Kenyans yearning for a new dispensation have been frustrated by a political class that cannot see beyond its cheap power struggles. The new dispensation has been delayed for almost seven years now. If Kenyans want it to blossom, they need to get rid of the current political class in 2017. All of them. They have no intentions of making the constitution work. If it does not suit their political interests, they will use it as an excuse for inaction or the wrong action. We can usher in a new era of constitutionalism, but we cannot teach constitutionalism to KANUnites.