CHAPTER 10

PRIME MINISITER AND DEPUTY PRIME MINISTER IN AND AFRICA1 This Chapter may be cited as: Ben Sihanya (forthcoming 2020) “Prime Minister and Deputy Prime Minister in Kenya,” in Ben Sihanya (2020) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Vol. 1: Presidency, Premier, , Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring & Innovative Lawyering, & Siaya.

10.1 Conceptualizing and Problematizing the Prime Minister and Deputy Prime Minister in Kenya and Africa2 My overarching argument is that the proposed reintroduction in Kenya of the Prime Minister’s and Deputy Prime Minister’s office and its existence in some African states is crucial for power sharing, inclusion, economic efficiency, accountability and effective constitutional democracy in Kenya and Africa. The powers, functions and privileges as well as impact of the Prime Minister depends on whether the -Legislative structure is presidential, parliamentary, or a hybrid leaning towards either. The post-2010 PM debate has emphasized pro-people reforms beyond a mere expansion of the Executive-Legislature power structure.

What is the Afro-Kenyanist text and theory informing the establishment and operationalization of Prime Minister’s office? How have Kenyan reform debates and especially the Building Bridges Initiative (BBI) addressed the Prime Minister’s office? Specifically, what are the powers and functions of the Prime Minister and especially in Kenya, Nigeria, , , Tanzania, United Kingdom and France?

How does one become a Prime Minister and Deputy Prime Minister? The relationship between the Prime Minister and Deputy Prime Ministers? Prime Minister and President where one exists? Prime Minister and the House(s) of ? What are the Prime Minister’s rights, privileges and immunity? Under what circumstances may a vacancy arise or occur in the office of the Prime Minister? What about the vote of (no)confidence? Censure motion?

1 The debates to reintroduce the PM’s and DPM’s office in the post 2010 period and especially in the context of the Building Bridges Initiative (BBI) has influenced the content and structure of this Chapter. In earlier drafts and classes, the PM was in the same context and Chapter as the President, and the Deputy Prime Minister was studied alongside the Deputy President. 2 See Bibliography to Chapters 9A and 9B on “The President and Deputy President in Kenya and Africa,” and Chapter 10 below on Prime Minister and Deputy Prime Minister (DPM) in Kenya and Africa…. For reasons advanced in Chapters 9A and 9B, the President and Deputy President will be analyzed in separate chapters in the next review. Briefly, the two offices are conceptually, constitutionally, politically and pragmatically distinct. They do not constitute a co-presidency…. 1

10.2 The Historical Development of the Prime Minister’s Office in Kenya and Africa The Office of Prime Minister has existed twice in Kenya’s constitutional order. The Prime Minister has been a constant feature of the constitutional systems of the United Kingdom and India, and constant or regular in some African states like Uganda, Tanzania, and Nigeria.....?3

First, immediately after independence in 1963, KANU’s was Prime Minister. And second, ODM’s became Prime Minister after the signing of the National Accord and Reconciliation Act (NARA) of 2008. He had been Member of Parliament (MP) for Lang’ata since 1992.4

Remarkably, the establishment of the office of the Prime Minister has been debated on at least three occasions. First, in 1968 when President Kenyatta had a heart attack and at least three of his affiliates in the Kiambu mafia felt entitled to the Prime Minister’s office, namely, Njoroge Mungai, Peter and Peter Muigai Kenyatta.5

Second, the Bomas National Constitutional Conference (NCC) debated an Executive Prime Minister.6

Third, the post 2013 constitutional, political and electoral dispensation has witnessed debates for parliamentary or hybrid system with a Prime Minister. That debate intensified following the 2017 presidential election, transition crisis and the handshake or rapprochement between President and People’s President Raila Odinga of 9/3/18.

There are claims linking the three key players in the Uhuru Kenyatta succession to the Prime Minister debate. The claims relate to the views on the PM directly, and indirectly attributed to President Kenyatta,7 PM Odinga,8 and DP Ruto9….

3 Compare the reference to Dr Fred Matiang’i, Ms Anne Mumbi Waiguru and some of their contemporaries and predecessors as Prime Minister, Chief Minister, Senior Minister, Super Minister or Super CS…. Chief Minister was always used at independence in British Africa as a transition, training ground or rite of passage for the future Prime Minister for example in Kenya, Nigeria,…. 4 Member of Parliament for Lang’ata on Ford Kenya ticket (1992-1994); MP for Lang’ata on National Development Party (NDP) (1994-2002)…. See Raila Odinga (2013) Raila Odinga: The Flame of Freedom, Mountain Top Publishers, Nairobi; Babafemi Badejo (2006) Raila Odinga: An Enigma in Kenyan Politics, Yintab Books... 5 These were President Jomo Kenyatta’s nephew and physician, brother-in-law, and son, respectively. See also the discussion on President Jomo Kenyatta and the Kiambu mafia (aka Gatundu Group) in Chapters 9A, 9B on President and Deputy President and Chapter 19 on Assessing Kenyan and African President and Deputy President…. 6 See Bomas Draft Constitution 2004…. 7 Jacob Ng’etich (2018) “Why the premier post is a hot potato in referendum debate,” Standard, Nairobi, October 21, 2018, at https://www.standardmedia.co.ke/article/2001299814/could-uhuru-be-the-next-prime-minister 2

Most of the claims are merely speculative.

Tanzania has a Prime Minister in addition to the President and Vice President. And the Tanzanian Prime Minister model has been debated in Kenya as discussed below….

Relatedly, in Nigeria, the Prime Minister’s office existed at independence in 1960 when it was occupied by Sir Abubakar Tafawa Balewa until he was killed in a coup on 15/1/1966…. The Prime Minister’s office was abolished on 15/6/1966.10

Significantly, South Africa has nine (9) provincial premiers who play a role similar to that of the President at the national level.11 Kenya has debated a regional Government model at independence (), at Bomas (14 regions),12 and in the post 2010 and BBI reform process….13

(accessed 6/7/2020); Patrick Vidija (2020) “Uhuru: I’m not interested in another term or being Prime Minister,” Star, Nairobi, 18/6/2020, at https://www.the-star.co.ke/news/2020-06-18-uhuru-im-not-interested-in-another-term- or-being-prime-minister/ (accessed 6/7/2020); Wainaina Ndung’u (2019) “Uhuru denies political deal with Raila, backs PM post,” Standard, Nairobi, 16/11/2019, at https://www.standardmedia.co.ke/article/2001349583/i-don-t- mind-pm-position-says-uhuru (accessed 6/7/2020); Gideon Keter (2020) “Inside Uhuru’s resolve to create PM post,” Star, Nairobi, June 2, 2020, at https://www.the-star.co.ke/news/2020-06-02-inside-uhurus-resolve-to-create-pm- post/ (accessed 6/7/2020); Nation Team (2019) “Uhuru PM ‘plot’ creates big divide nationwide,” Daily Nation, Nairobi, December 30, 2019, at https://www.nation.co.ke/kenya/news/politics/uhuru-s-pm-post-plot-creates-big- divide-nationwide-236832 (accessed 8/7/2020). 8 Roselyne Obala & Moses Nyamori (2020) “Uhuru, Raila BBI team retains powerful president, weak PM,” Standard, Nairobi, June 28, 2020, at https://www.standardmedia.co.ke/article/2001376724/uhuru-raila-bbi-team- retains-powerful-president-weak-pm (accessed 6/7/2020); Tony Ndungu (2020) “ Raila Odinga: BBI will not make Uhuru Prime Minister,” Citizen Digital, February 25, 2020, at https://citizentv.co.ke/news/raila-odinga-bbi-will-not- make-uhuru-prime-minister-324064/ (accessed 6/7/2020). 9 Onyango Konyango (2020) “Change of tune as Ruto allies support expanded Executive,” Daily Nation, Nairobi, June 30, 2020, at https://www.nation.co.ke/kenya/news/politics/change-of-tune-as-ruto-allies-support-expanded- executive-1326864 (accessed 6/7/2020); Macharia Gaitho (2019) “BBI: Ruto camp walking a tight rope,” Daily Nation, Nairobi, October 25, 2020, at https://www.nation.co.ke/kenya/news/politics/bbi-ruto-camp-walking-a-tight- rope-216932 (accessed 6/7/2020). 10 The first President Dr Nnamdi Azikiwe (Zik), an Ibo, served from 1963-1966…. See Chinua Achebe (2012) There Was a Country: A Personal History of Biafra, Penguin Books; Chinua Achebe (2000) The Trouble With Nigeria, Fourth Dimension Publishers…. 11 Constitution of South Africa, Chapter 6. 12 See First Schedule to the Bomas Draft Constitution…. The list is annexed to this Chapter and will be annexed to the Chapter on Devolution and cross referenced in the relevant chapters. 13 See also Chapters 1, 4,….on devolution…. 3

10.2.1 Office of the Prime Minister under the Lancaster House (Independence) Constitution14 Section 75(1) of the Lancaster House Constitution provided for a Prime Minister who would be appointed by the Governor-General from among legislators who the Governor-General considered likely to command the support (or confidence)15 of a majority of the members of the House of Representatives.16 In the various African and other States, the Prime Minister may constitutionally come to office through any of the following three formulae.

First, a Prime Minister directly elected through the popular vote.17 Second, indirect election through the party or coalition of parties with the majority in Parliament (usually, in the House of Representative);18 or indirect election by MPs who constitute an electoral college….19 Third, direct appointment by the ….20

All the three methods or formulae may be attended or consummated by the requirement of “appointment” by the President or other designated Head of State. Thus there is often a default clause that the President or Head of State would appoint the person who has the qualification to be Prime Minister and who commands the support or confidence, or who, in the President’s view, seems to command the support or confidence of the House.21

Can the process be manipulated? What of the fear that President’s party may rig elections and influence who becomes Prime Minister (PM), Deputy President (DP), Deputy Prime Ministers (DPMs)? Is that one of the reasons the President, Monarchs, and Heads of State are expected to be non partisan, and not elected (by popular vote)?22

14 Other ex partial colonies also negotiated their independence Constitutions at Lancaster House Cf. Sir Ivor Jennings (1963) The Law and the Constitution, University of London Press. 15 This is the British formulation on Prime Minister and gives the (wrong) impression that the Governor General had absolute discretion….. See…. 16 Did the Governor General have absolute discretion or plenary powers? Yash Ghai and McAuslan (1970) Public Law and Political Challenge in Kenya, Oxford University Press; Robert Maxon;….; David Goldsworthy (1982), Tom Mboya: The Man Kenya Wanted to Forget, London, Heinemann; New York, Africanna Publishing Company 17 …. 18 …. 19 …. 20 We have omitted unconstitutional or unconstitutionally suspect means of becoming Prime Minister such as assassination, coup, revolt,…. 21 Support or confidence of the House is also the basis of a vote of (no)confidence as a method of retaining or removing the Prime Minister. Having the largest number of MPs is more objective and focuses on counting seats or votes. The second is subjective. Either way, support or confidence of the House is key to the PM’s ability to transact Government (or Executive) business in the House…. 22 …. 4

Jomo Kenyatta was appointed the first Prime Minister of Kenya with effect from 1/6/1963 to 12/12/1963.23 His powers, duties and functions entailed advising the Governor-General, Sir Malcom MacDonald in the appointment of the Cabinet and the execution of the Governor- General’s functions and duties.24 The post was abolished by the first constitutional amendment25 that created the presidency in 1964.26

How did Jomo Kenyatta perform as Prime Minister?27 Why did Kenyatta have the Constitution amended so quickly to transform the Prime Minister’s office to the Office of the President with effect from 12/12/64?28

10.2.2 Prime Minister Debate in Kenya in 1968 As Jomo Kenyatta grew old, sickly and senile from the late 1960s, and especially in the context of heart attacks, the Kiambu mafia feared or dreaded that power may slip.29 The Constitution then provided that in case of a vacancy in the office of the President, Members of Parliament would elect an MP to become the President.30 The most likely successor was Economic Affairs Minister and KANU Secretary General Thomas Joseph Odhiambo Mboya (Tom Mboya or TJ). According to Prof David Goldsworthy, they feared that Mboya could mesmerize the MPs to vote for him. He had been sophisticated. Eloquent. Persuasive. He had always persuaded MPs to vote even for (apparently) unpopular bills and motions that promoted Kenyatta’s agenda.31

The Kiambu mafia sought the creation of the office of the Prime Minister whose main contenders were close relatives or affiliates of Jomo Kenyatta: Dr Njoroge Mungai (Defence Minister?; Kenyatta’s personal doctor and nephew), Peter Mbiyu Koinange (Minister of State; brother-in-law); and Peter Muigai Kenyatta (Assistant Minister; son)….32 A-G Charles Njonjo was the constitutional and legal architect…..33

23 …. See…. 24 See…. Constitution. 25 Act No. 28 of November 24, 1964.... 26 …. 27 …. 28 …. 29 See David Goldsworthy (1982) Tom Mboya: The Man Kenya Wanted to Forget, Africana Publishers, op. cit.; Duncan Ndegwa (2006) Walking in Kenyatta’s Struggles: My Story, Kenya Leadership Institute, Nairobi. 30 ….S. …. of Independence Constitution…. 31 See Goldsworthy (1982) Tom Mboya: The Man Kenya Wanted to Forget, ibid.; Cf Odhiambo Levine Opiyo (2020) “Purge in Jubilee mirrors plot against Tom Mboya in 1968,” Sunday Nation, Nairobi, July 5, 2020, at 31, at https://www.nation.co.ke/kenya/news/politics/purge-in-jubilee-mirrors-plot-against-tom-mboya-in-1968-1444888 (accessed 6/7/2020) (Tom Mboya was assassinated on 5/7/1969). 32 …. 33 …. 5

Then there was a lull in the Prime Minister debate as Kenyatta and Njonjo groomed Moi to succeed Kenyatta from the late 1960s into the 1970s, even if they also left Moi to be harassed, intimidated and even embarrassed by the Kiambu mafia and their affiliates….34 In the 1980s, Moi presided over a unitary executive with no room for a Prime Minister….35

10.2.3 Prime Minister in the NARC MoU and administration, 2002-2007 The office of President, Deputy President, Prime Minister, Deputy Prime Ministers featured prominently in at least four (4) contexts. First, the pre-election memorandum of understanding (MoU) of the National Rainbow Alliance Coalition (NARC). Second, in the course of National Rainbow Coalition (NARC) administration.36 Third, at the Bomas Constitutional Conference. And fourth, in the November 21, 2005 (DP) Referendum Draft Constitution 2005.

The NARC MoU provided as follows on Prime Minister and Deputy Prime Minister…. The commitments on Prime Minister and Deputy Prime Minister were never implemented by President Kibaki.37 Instead, some suggested that Raila Odinga be appointed the Chief Minister….38 This did not happen either…. Thus the PM and DPM became key issues at the Bomas Constitutional Conference and beyond….

10.2.4 Prime Minister under the Bomas Draft Constitution 2004 Some of the top three questions in the Bomas constitutional review process were executive structure – and especially the Prime Minister – and devolution.

How did Bomas establish the office of the Prime Minister? What were the qualifications for one to become a Prime Minister under the Bomas Draft? What were the disqualifications? What were the powers and functions of the Prime Minister under the Bomas Draft? How would a vacancy

34 …. 35 …. 36 …. 37 …. 38 Political and intellectual supporters of President Kibaki generally opposed the establishment of the Prime Minister’s Office or inclusion at the top of the Executive…. See ,, the Justice and Constitutional Affairs Minister; Chris Murungaru…., then Internal Security Minister… To cite Wachira Maina articles on PM in the 2002-2012 period; Cf Wachira maina (2018) “This is what should be on Raila’s list of constitutional reforms,” Saturday Nation, Nairobi, 12/5/2018, at https://www.nation.co.ke/kenya/news/this-is-what-should-be-on-raila-s-list- of-constitutional-reforms-43034 (accessed 8/7/2020); Wachira Maina (2017) “Why the presidential election on October 26 won’t resolve Kenya’s political crisis,” East African, Nairobi, October 15, 2017, at https://www.theeastafrican.co.ke/oped/comment/Wachira-Maina-Kenya-elections/434750-4140034- 15g9i3d/index.html (accessed 8/7/2020)…. 6

occur in the office of the Prime Minister? How would the Prime Minister lose his or her office in terms of generic and specific causes of a vaccancy?

10.2.4.1 Prime Minister and Deputy Prime Minister powers and functions under the Bomas Draft Constitution, 2001 What was the text, political economy and legal sociology of the Prime Minister’s office under the Bomas Draft constitution?

Article 172 of the Bomas Draft Constitution provided thus on the Prime Minister:

“(1) There shall be a Prime Minister of the Republic, who shall be the . (2) The Prime Minister shall co-ordinate the work of the ministries and the preparation of legislation, and is responsible to Parliament. (3) The Prime Minister shall preside at meetings of the Cabinet.”

There has always been debate on who occupies the Prime Minister’s office when the Prime Minister is unavailable. Significantly, Article 172 continued thus:

“(4) In the absence of the Prime Minister, one of the Deputy Prime Ministers designated by the Prime Minister shall perform the functions of the Prime Minister. (5) The Deputy Prime Minister when performing the functions of the Prime Minister under clause (4) shall not exercise a power of the Prime Minister in relation to – (a) nomination or recommendation for appointment to a public office; or (b) the allocation of functions to or the transfer of functions from a Deputy Prime Minister, Minister or Deputy Minister.”39

How was the Prime Minister to be appointed under the Bomas Draft Constitution?

10.2.4.2 Appointment of Prime Minister under the Bomas Draft Constitution, 2001 Article 173 of the Bomas Draft Constitution provided for the appointment of the Prime Minister as follows:

“(1) Within seven days following the summoning of the National Assembly after an election, or whenever necessary to fill a vacancy in the office of Prime Minister, other than on the occasion of a vote of no confidence, the President shall appoint as Prime Minister –

(a) the member of the National Assembly who is the leader of the largest political party, or coalition of parties, represented in the National Assembly; or

39 …. 7

(b) if the leader of the largest party or coalition has been unable to command the confidence of the National Assembly, the member of the National Assembly who is the leader of the second largest political party, or coalition of parties represented in the National Assembly.”40

What would happen when the Leader of the largest political party or coalition of parties was unavailable, or where she was unable to command the support or confidence of the National Assembly?

“(2) Where neither of the persons contemplated in clause (1)(a) or (b) has been able to command or retain the confidence of the National Assembly, the President shall propose to the National Assembly the name of a member who, in the President’s opinion, may be able to command the confidence of the National Assembly.41

(3) On receiving a proposal from the President under clause (2), the Speaker shall summon the National Assembly and introduce the proposal from the President.”

What is the timeline and threshold regarding the alternative (presidential) method of nominating and appointing a Prime Minister?

“(4) Within seven days of the Speaker receiving a proposal from the President, the Speaker shall call a vote in the National Assembly to confirm the appointment of the person proposed by the President.

(5) A vote contemplated in clause (4) passes if it is supported by at least fifty per cent of the members of the National Assembly.

(6) If the National Assembly fails to confirm the appointment of the person proposed by the President, the National Assembly shall by a vote supported by a majority of members present and voting nominate a member of the National Assembly for appointment as the Prime Minister.”

There was a “nuclear option” that MPs would have in case of failure to confirm a nominated Prime Minister:

“(7) If, within sixty days of the President first proposing a person to be appointed Prime Minister, no person has been confirmed, the National Assembly shall stand dissolved and the Electoral and Boundaries Commission shall conduct a fresh general election for the National Assembly.”

The foregoing is related to the term of office of the Prime Minister….

40 …. 41 …. 8

10.2.4.3 Term of office of the Prime Minister under the Bomas Draft Constitution, 2001 Article 174 of the Bomas Draft Constitution stated thus on the Prime Minister’s term of office: “(1) A person whose appointment as Prime Minister has been confirmed by the National Assembly shall assume the office by taking and subscribing the oath or affirmation for the due performance of the functions of the office prescribed in the Third Schedule, before the Speakers and members of Parliament.

(2) The term of office of the Prime Minister continues until – (a) the Prime Minister dies, resigns or is dismissed from office; or

(b) the next person appointed Prime Minister following an election assumes office.

10.2.4.4 Resignation of Prime Minister under the Bomas Draft Constitution, 2001 Could a Prime Minister resign? How? Article 175 stated: “(1) The Prime Minister may resign from office by delivering a written notice of resignation to the President.

(2) The resignation of the Prime Minister takes effect –

(a) on the date and at the time specified in the notice, if any; or

(b) at noon on the day after it is delivered, in any other case.”

What of the dismissal or disappointment of a Prime Minister?

10.2.4.5 Dismissal of Prime Minister under the Bomas Draft Constitution, 2004 Article 176 addressed the Prime Minister’s dismissal. This could be initiated or porposed by the President or an MP…..

“(1) The President may propose to the National Assembly the dismissal of a Prime Minister.42 (2) The proposal of the President under clause (1) passes if it is supported by the votes of not less than fifty per cent of all the members of the National Assembly.”43

Alternatively,

“(3) A member of the National Assembly supported by not less than a third of the members may, at any time during a sitting of the National Assembly, propose a motion of no confidence in the Prime Minister.”44

42 …. 43 …. 44 …. 9

Moreover,

“(4) If the National Assembly, by a resolution supported by the votes of at least fifty per cent of its members, passes the motion of no confidence in the Prime Minister, the Prime Minister shall submit to the Speaker of the National Assembly notice of the Prime Minister’s resignation and that of the two Deputy Prime Ministers, the Cabinet Ministers and the Deputy Ministers.”45

Would there be a vacuum, lacuna, hiatus, or interregnum?

“(5) The Prime Minister, the two Deputy Prime Ministers and the Cabinet shall continue in office until a new Prime Minister assumes office.

(6) If the Prime Minister does not submit the notice in accordance with clause (4), within seven days of the passing of the resolution, the President shall dismiss the Prime Minister, the two Deputy Prime Ministers, the Cabinet Ministers and the Deputy Ministers, and the relevant provisions of Article 169 shall apply regarding the appointment of a new Prime Minister.”46

But the Constitution reminded the President of the constitutional imperatives, stipulation, or strictures on dismissing the Prime Minister:

“(7) The President shall not dismiss the Prime Minister, the two Deputy Prime Ministers, the Cabinet Ministers and the Deputy Ministers in any circumstances, other than those contemplated in this Article and Article 174.”47

How did the Prime Minister debate evolve post-Bomas Draft Constitution?

What did the 2005 Draft Constitution provide on Prime Minister and Deputy Prime Minister?

The disintegration of the NARC Coalition and administration following the defeat of the Referendum Draft Constitution of 21/11/2005 intensified the debates for a genuinely inclusive and broad based Government….48

10.2.5 Office of the Prime Minister under Kenya’s National Accord and Reconciliation Act 2008-2013 The Office of the Prime Minister was re-introduced into Kenya’s constitutional order in 2008, following the Kofi Annan-led mediation process that followed the disputed 2007 General

45 …. 46 …. 47 …. 48 Cf Babafemi Badejo (2006) Raila Odinga: An Enigma in Kenyan Politics, Yintab Books, op. cit.,…. 10

Elections.49 Parliament enacted the (Amendment) Act, No. 1 of 200850 and the National Accord and Reconciliation Act, (NARA) 2008.

The two laws introduced a new constitutional and political order led by a Grand Coalition (or Nusu Mkate) Government.51 The enactments created the offices of Prime Minister and two Deputy Prime Ministers (DPMs) who were answerable to Parliament for the performance of the Government.52 Was this a partial implementation of Bomas Draft? Some remarked that the post- election violence and mediation process made Kibaki do what he should have done in 2003, and Kenya may have avoided the post-election violence….53

The Constitutional amendment and the National Accord and Reconciliation Act, 2008 provided that the Prime Minister would be the leader of the largest political party or coalition of parties in Parliament.54 Consequently, Raila Odinga, the Leader of the Orange Democratic Movement (ODM) that had 104 Members of Parliament, became Prime Minister.55

Under the 1969 Constitution, the functions of the Prime Minister included supervision and coordination of Government, and any other functions that the President or Parliament might have conferred upon the Prime Minister.56

What were PM Raila Odinga’s powers and functions with regard to the three broad parameters of constitutional and political powers, economic powers, and rule of law and liberty? First, what were PM Odinga’s constitutional and political powers in the context of the three arms of Government and Ministries, Departments and Agencies (MDAs) generally?

49 Kofi Annan served with former Tanzania President Benjamin Mkapa and Mrs Graca Machel Mandela. He had been the United Nations (UN) Secretary General from January 1997 to December 2006. See Ben Sihanya and Duncan Okello (2010) “The constitutional politics of Kenya’s post-election mediation process,” in Karuti Kanyinga and Duncan Okello (eds) (2010) Tensions and Reversals in Democratic Transitions: The Kenyan 2007 General Elections, Society for International Development, Nairobi. 50 The main provisions are s. 3 and 15 (a) of the Constitution 1969. 51 Prime Minister Raila Odinga called the Coalition nusu mkate (or half a loaf) Government… It was also called serikali ya mseto (coalition Government) in Swahili. 52 Cf. Prime Minister succession politics in Uganda where President Museveni pursuant to article 108 (a) (1) of the Constitution of the Republic of Uganda appointed Dr Ruhakana Rugunda to replace Amama Mbabazi…. 53 …. 54 ….s…. of the National Accord and Reconciliation Act, 2008-13; Art….. of Bomas Draft Constitution. 55 According to Raila, Mr (Ambassador) Francis Muthaura reportedly sent him a letter of appointment. He rejected it. The appointment was nominal because of the mandatory language and the objective criteria. Cf. the appointment of the Prime Minister (PM) at independence, and in the UK historically. See Raila Odinga, The Flame of Freedom, ..... 56 Sec. 15A; s…. of the National Accord and Reconciliation Act, 2008-13. 11

The PM chaired Cabinet Committees on cross sectoral matters.57

PM Raila Odinga represented Kenya in international fora in Kenya and abroad….58

The National Economic and Social Council (NESC) was based in PM Odinga’s office.59

Second, with regard to economic resource distribution.60 The PM chaired the Efficiency Management Unit (EMU) (formerly under OP) and Performance Contracting programmes.61

He also chaired the PM’s Roundtable with business associations and leaders or the “captains of industry.”62

Third, with regard to the rule of law and liberty of the people, for instance, the PM directed university managers and administrators and the relevant security agencies to let university students demonstrate to ventilate their grievances.63

In addition, Prime Minister Raila Odinga addressed Parliament every Wednesday on Government policy, plans, programmes, strategies, projects and operations….64 He also dealt with various issues raised by the Matatu (or mini-bus) industry,65 the lecturers in public universities,66 student affairs including right to protest,67 and affairs of nurses and other health workers...68

57 Constitution of Kenya 1969; Act No. 5 of 1969 58 …. 59 National Economic and Social Council (NESC), at https://cabinetoffice.go.ke/national-economic-and-social- council-nesc/ (accessed 6/7/2020). 60 …. 61 …. 62 …. 63 …. 64 See Standing Orders; Hansard & related reports…… 65 …. 66 …. 67 …. 68 How do the foregoing powers, functions and activities of PM Raila Odinga relate to his role in the post Kenyatta- Raila handshake (9/3/2018) dispensation? 12

Prime Minister Raila Odinga was to serve from the date of swearing in (April 17, 2008) until the occurrence of any of the events stipulated in the National Accord and Reconciliation Act, 2008:69

“The persons occupying the offices of President and Prime Minister immediately before the effective date shall continue to serve as President and Prime Minister respectively, in accordance with the former Constitution70 and the National Accord and Reconciliation Act, 2008 until the first general elections held under this Constitution,71 unless they vacate office in terms of the former Constitution and the Accord.”72

Prime Minister Raila Odinga’s supporters,73 his critics,74 and pollsters75 then regarded him as the leading contender in the presidential elections due on March 4, 2013 mainly because of his constitutional democracy platform, performance and record, partly because President Kibaki (who controlled Government machinery) was disqualified to run for President. This was under section 12(3) of the Sixth Schedule:

“A person who was elected President before the effective date is not eligible to stand for election as President under this Constitution.”76

Supporters and critics mentioned Raila’s long struggle for a new constitutional order and its implementation.77

The President and the PM had the power and function (or mandate) of facilitating transition through consultations regarding appointments (and disappointments?) before the next elections. Yet Kibaki took too numerous decisions including nominations,78 appointments,79 and countermanding PM Raila’s decisions or actions….80

69 The Agreement on Partnership was signed on 28/2/2008…. See Raila Odinga (2013) The Flames of Freedom, op. cit.; Jeffrey Gettleman (2008) “Kenya rivals reach peace agreement,” New York Times, New York, February 29, 2008, at https://www.nytimes.com/2008/02/29/world/africa/29kenya.html (accessed 8/7/2020). 70 Section 1 (Interpretation) of the Sixth Schedule of the 2010 Constitution defines “former Constitution” thus: “means the Constitution in force before this Constitution came into force.” The Sixth Schedule is under Art 262 of the Constitution, 2010. 71 That was 4/3/2013. 72 Cf. s. 9(2) of the 1969 Constitution; Matiba v. Moi.... See Chapter 3 CODRALKA 2 on “Mediating Kenya’s post- election crises: The politics and limits of power sharing agreements.”… 73 …. 74 …. 75 …. 76 ….cf sec. 9(2) of 1969 (amended 1991….)…. See Chapter 9A and 9B of CODRALKA 1. 77 What if Kibaki left office before March 4, 2013? (eg on the 5th anniversary of his second presidencial term, December 30, 2012). 78 …. 13

When Kibaki purported to nominate Justice (now Rtd) Alnashir Visram as Chief Justice, Githu Muigai as A-G, Kioko Kilukumi as Director of Public Prosecutions (DPP), and William Kirwa as Controller of the Budget (CoB). Raila contested this, indicating he had not been consulted as required by the National Accord and Reconciliation Act 2008-13.81

Lawyers and civil society organisations advanced at least two arguments. First, the Judicial Service Commission (JSC) was the one to interview and recommend Chief Justice for Parliamentary approval and appointment by the President. And that the presidential appointment was in any case nominal, notional administrative or peripheral…. President ’s faction had said the transition clauses did not provide for that and that he could rely on ss. 23, 24, 25 of the 1969 Constitution….82

Second, lawyers and civil society organizations argued that there was no gender balance under Article 2783.....CREAW;84 MUHURI85….

79 …. 80 For instance, President Kibaki countermanded PM Raila Odinga’s suspension of Agriculture Minister following serious corruption allegations and scandals in the majority…. See Alex Ndegwa (2011) “Ruto factor in delayed Cabinet reshuffle,” Standard, Nairobi, June 15, 2011, at https://www.standardmedia.co.ke/business/article/2000037160/ruto-factor-in-delayed-cabinet-reshuffle (accessed 8/7/2020). 81 See Ben Sihanya (2011) “‘Consultation’ is now crucial in Kenya, especially after the enactment of the National Accord and Reconciliation Act in 2008.” Standard Digital News, Nairobi, 27/2/2011, at https://www.standardmedia.co.ke/article/2000030048/consultation-should-be-a-device-for-ceasefire-between- warring-political-parties (accessed 21/3/2019). 82 ….s. 23…s. 24…. See also Chapters 9A and 9B…. on President and Deputy President …. (to be restructured to separate President from Deputy President)…. 83 It states “(1) every person is equal before the law and has the right to equal protection and equal benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms. (3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. (4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. (5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4). (6) To give full effect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination. (7) Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need. (8) In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.” See also Chapters 1, 4, 5A,…. Of CODRALKA 1. 84 Minister for Internal Security and Provincial Administration v. Centre For Rights Education & Awareness (Creaw) & 8 Others [2013] eKLR…. 85 Muslims for Human Rights (MUHURI) & Another v. Inspector-General of Police & 5 Others [2015] eKLR 14

What role has Raila Odinga play in the Kenya’s constitutional democracy pre and post 2007?

Ghai and others have remarked on Raila’s insights and political commitments to a progressive constitutional dispensation before and after the Bomas constitutional and 2007 electoral processes.

The present author has since 2006 (during the launch of Badejo’s book on Raila) considered a full length study on Raila as a onstitutional engineer?86 or architect. There are at least five (5) categories of Raila’s contribution to constitutional democracy in Kenya. First, coalition building that birthed NARC (or Rainbow) (2002). Second, the use of memorandum of understanding (MoU) in coalition building and consociational politics, legislation and constitutional reform to build coalitions and inclusivity (2007, 2010).

Third, defeating retrogressive constitutional change disguised as reform in the form of the new proposed constitution (2005). Fourth, building a constitutional reform movement through the Orange Democratic Movement (ODM) in the process of defeating retrogressive political, economic and constitutional forces (2005 and beyond).87 Fifth, leading comprehensive constitution making to include liberties, shared executive-legislative power and devolution in the Bomas and the 2010 constitutional processes?88

86 The author first used this phrase at that launch. Political scientists, political sociologists, and others have called Raila a social – not liberal – democrat…. Chapters 1, 4, 9A, 9B and 10….of CODRALKA 1 and CODRALKA 2 capture the key issues. 87 As at 2020, ODM was the only long institutionalised political party with a significant membership in the National Assembly, senate, County Assembly, and Council of Governors. 88 See Ghai’s write ups, speeches and statements including Yash Ghai (2018) “Kenya needs Raila Odinga’s constitutional reform initiative,” Elephant, Nairobi, May 13, 2018, at https://www.theelephant.info/op- eds/2018/05/13/kenya-needs-raila-odingas-constitutional-reform-initiative/ (accessed 6/7/2020); Yash Ghai (2020) “A short history of constitutions and what politicians do to them,” Elephant, Nairobi, March 30, 2020, at https://www.theelephant.info/features/2020/03/30/a-short-history-of-constitutions-and-what-politicians-do-to-them/ (accessed 6/7/2020); Nation Team (2001) “Give majimbo a chance, Raila tells Ghai team,” Daily Nation, September 11, 2001, at 6; Moses Nyamori (2019) “How Kibaki_Raila fallout stalled constitutional reforms,” Standard, Nairobi, April 25, 2019, at https://www.standardmedia.co.ke/article/2001322545/how-battle-for-pm-slot-hurt-push-for-new- law (accessed 6/7/2020); Star Reporter (2017) “Father of the nation? Yash Ghai asks Raila to refrain from swearing in,” Star, Nation, December 21, 2019, at https://www.the-star.co.ke/news/2017-12-21-father-of-the-nation-yash- ghai-asks-raila-to-refrain-from-swearing-in/ (accessed 6/7/2020). Ghai’s, Prof Michael Chege speeches include those at the launch of Prof Anyang’ Nyong’o’s book, Presidential or Parliamentary Democracy in Kenya…. (To analyze: Contributions to constitutional development through Okoa Kenya; being the bastion of Kenyans’ aspirations and hope in the midst of helplessness as immortalized through “Baba when you were away”.... 15

Prof Yash Ghai assessed Raila Odinga’s tenure as premier in the run up to the 2017 elections. He underscored the challenges Raila Odinga faced in the Coalition Government and reiterated Raila’s achivements as Prime Minister.89

The progressive professoriate (or scholars), commentariat and punditry focus on Raila’s progressive constitutional and political agenda and remark on the opportunities denied or lost through rigged presidential elections in 2007, 2013 and 2017 (twice).90

10.2.5 President, Premier, and Cabinet Offices in Kenya and Africa91 Traditionally, Harambee House, located in Harambee Avenue in Nairobi city, has been the “Office of the President.” State House is the President’s official residence. State House is considered the President’s office too.

These physical offices or spaces have been significant in sharing power among President, Prime Minister and Deputy President or Vice President in Kenya and Africa.

10.3 Prime Minister in Tanzania, Ethiopia and Uganda… The Tanzanian Prime Minister has informed Kenyan debates, especially in the context of the 2002 National Rainbow Alliance Coalition (NARC),92 the 2008 Grand Coalition,93 the 2010 Constitution making debates, and the post 2017 and BBI debates. How is the Tanzanian Prime Minister appointed? What are the PMs powers and functions? Section 51 of the Constitution of Tanzania provides: “51. (1) There shall be a Prime Minister of the United Republic who shall be appointed by the President in accordance with the provisions of this Article and who, before assuming his office, shall take and subscribe before the President such oath of office of Prime Minister as may be prescribed by Parliament.”94

What are the qualifications of a Prime Minister? What processes and timelines guides the appointment of Tanzanian Prime Minister? sec. 51(2) states:

“(2) As soon as possible, and in any case within fourteen days after assuming office, the President shall appoint a Member of Parliament elected from a constituency from a political party having a

89 Raila Odinga (2017) The Quest for Nationhood: A Roadmap into the Future, Mountain Top Publishers, Nairobi. 90 See Chapters 9A and 9B above. 91 To review in light of Chapter 9 on Presidency and Deputy Prime Minister…. 92 …. 93 …. 94 Cf. simple majority, absolute majority, super majority, plurality, minority…. 16

majority of members in the National Assembly95 or, if no political party has a majority, who appears to have the support of the majority of the Members of Parliament,96 to be Prime Minister of the United Republic, and he shall not assume office until his appointment is first confirmed by a resolution of the National Assembly supported by a majority vote of the Members.”97

What is the tenure of the Tanzanian Prime Minister? And how may a vacancy occur in the office of the Prime Minister?

“(3) Subject to the other provisions of this Constitution, the Prime Minister shall hold the office of Prime Minister the day (a) the President-elect takes the oath of office; (b) he dies while in office; (c) he resigns; (d) the President appoints another Member of Parliament to hold the office of the Prime Minister; or (e) he ceases to hold the office of Prime Minister in accordance with the other provisions of this Constitution.”98

Section 52 makes provisions on Prime Minister powers and functions:

“52.-(1) The Prime Minister shall have authority over the control, supervision and execution of the day-to-day functions and affairs of the Government of the United Republic. (2) The Prime Minister shall be the Leader of Government business in the National Assembly. (3) In the exercise of his authority, the Prime Minister shall perform or cause to be performed any matter or matters which the President directs to be done.”99 How does the Tanzanian Prime Minister relate with the Presidency? Section 53 obligates the Prime Minister to be answerable and accountable to the President and the National Assembly in exercise of executive authority and in determining policy:

“53.- (1) Subject to the provisions of this Constitution, the Prime Minister shall be accountable to the President for the exercise of his authority. (2) The Executive of the United Republic, under the authority of the President, shall be the organ having the power to determine the policy of the Government in general, and Ministers under the leadership of the Prime Minister, shall be collectively responsible in the National Assembly for the execution of the affairs of the Government of the United Republic.”100 Remarkably, the Prime Minister is bound by the doctrines of individual and collective responsibility and cooperation with Ministers. A vacancy may occur in the office of the Prime Minister in Tanzania in the contexts stipulated under section 51(3) of the Constitution of the United Republic of Tanzania:….

95 …. 96 Tanzania has a single chamber. National Assembly and Parliament are used interchangeably just like in Kenya following the abolition of the first Senate in (1968?). 97 …. 98 …. 99 …. 100 …. 17

Section 51 (3) of the Constitution of the United Republic of Tanzania provides thus: “Subject to the other provisions of this Constitution, the Prime Minister shall hold the office of Prime Minister the day – (a) the President-elect takes the oath of office; (b) he dies while in office; (c) he resigns; (d) the President appoints another Member of Parliament to hold the office of the Prime Minister; (e) he ceases to hold the office of Prime Minister in accordance with the other provisions of this Constitution.”101

Some of the Tanzanian Prime Ministers are Kassim Majaliwa, Mizenga Pinda, Edward Lowassa, Frederick Sumanye, Cleopa Msuya, John Malecela, Salim Ahmed Salim?102 How have they performed?103 The Kenyan Prime Minister debate has also considered the Ethiopian Prime Minister model, and especially in the BBI context that considered numerous options….104 How is the Ethiopian Prime Minister appointed?105 Some of the Ethiopian Prime Ministers are Abiy Ahmed (2018-), Hailemariam Desalegn (2012-2018), Meles Zenawi (1995-2012), Tesfaye Dinka (1991-1991), Fikre Selassie Wogderess (1987-1989), among others.106 What are the powers, functions and privileges of the Ethiopian Prime Minister? How does the Ethiopian Prime Minister relate with the Presidency?107 A vacancy may occur in the office of the Prime Minister in Ethiopia in the following generic108 and specific109 contexts:….110 Another Prime Minister model that has been occasionally debated in Kenya is the Uganda Prime Minister.111

101 To transfer from above. 102 The PMs served between the dates indicated after their names…. Salim Ahmed Salim was also Secretary general of the Organization of (OAU) (later renamed African Union (AU)) between 1989-2001. See…. 103 …. 104 …. 105 …. 106 The PMs served between the dates indicated after their names…. 107 …. 108 …. 109 …. 110 …. 111 …. 18

How is the Ugandan Prime Minister appointed? Some of the Ugandan PMs are Ruhakana Rugunda (2014-), Amama Mbabazi (2011-2014), Apolo Nsibambi (1999-2011), Kintu Musoke (1994-1999), Samson Kisekka (1986-1991), among others.112 How have they performed? What are the powers, functions and privileges of the Ugandan Prime Minister?113 How does the Ugandan Prime Minister relate with the Presidency?114 A vacancy may occur in the office of the Prime Minister in Uganda in the following generic115 and specific116 contexts:….

10.4 Prime Minister in France, Germany, the United Kingdom, and other Foreign Jurisdictions The French and British Prime Minister models have influenced debates on the Prime Minister in Kenya and Africa. In France, the President appoints the Prime Minister. The Prime Minister’s powers include directing Government actions, determining the conduct of policy of the Nation as well as ensuring implementation of Government laws.117 The main Afro-Kenyanist debate regarding the French Prime Minister debate relate to the relationship between the Prime Minister and the President, or the doctrine of cohabite (cohabitation). It means the constitutional and political imperative that the President and the Prime Minister work together in the national and public interest even if they come from opposing political parties or ideological orientations. The concept and practice is related to an arrangement between two people to live together (or cohabit) while not (formally) married, even though that may lead to the presumption of a common law marriage where there is a habit or reputation that the two live together relate as a man and wife (not brother and sister….)118

112 …. 113 …. 114 …. 115 …. 116 …. 117 …. 118 Section 3 of the Marriage Act, 2014; Hortensia Wanjiku Yawe v. Public Trustee, Civil Appeal No. 13 of 1976 (UR); Peter Hinga v. Mary Wanjiku, Civil Appeal No. 94 of 1977 (Miller, J) reported and analyzed in Eugene Cotran (1987) Casbook on Kenyan Customary Law, Professorial Books, Abingdon, Nairobi University Press… 19

While Afro-Kenyan (customary) marriage law is instructive in appreciating political and constitutional cohabitation between the President and the Prime Minister, the analogy between private and public law should not be overstretched. Remarkably, Kenya, the Democratic Republic of Congo (DRC)119 and Africa generally have had mixed outcomes on cohabitation. The DR Congo is one of the most dramatic case study on avoiding conflict between the Prime Minister and President. At independence, one of the constitutional crises, upheavals, disturbances, mutinies related to the tension between President Joseph Kasavubu and the popular left wing first Prime Minister Patrice Emery Lumumba (1925-61) who had almost equal executive powers, including may be the power to disappoint the other.120 Similar debates have arisen between the President (or executive) and the Prime Minister (or leaders of Parliament) in the post era. There have been tension between President Felix Tshisekedi and Prime Minister Sylvestre Ilunga (a protégé of the immediate ex-President Joseph Kabila121 The German experience are now being debated as well as a result of increased German economic, political, and technological success and influence.122 The United Kingdom is largely a legacy of colonialism in Kenya and Africa. It was part of the Westminster and the White Hall expert model transferred to Kenya and Africa at independence. However, Kenya and many African states further modified and/or abolished the Prime Minister.123

119 It was called , then (so named by ), then DRC (so named by President Laurent Kabila on the overthrow of Mobutu Sese Seko. Mobutu’s nomenclature was based on his theory of authenticity; Africanity…. President Laurent Kabila was replaced by his son Joseph Kabila following the assassination of Laurent Kabila…. 120 Leo Zeiling (2008) : Africa’s Lost Leader (Life and Times), Haus Publishing,…; Patrice Lumumba (1962) Congo, My Country, Pall Mall Press,…; Patrice Lumumba (2016) May Our People Triumph: Poem, Speeches and Interviews, CreateSpace Independent Publishers (Paul Daniel Aravinth (ed)). 121 Michael Chege (2020) “As it is, BBI will divide, not unite the Country,” Standard, Nairobi, June 10, 2020, at https://www.standardmedia.co.ke/article/2001374586/as-it-is-bbi-will-divide-not-unite-the-country (accessed 6/7/2020). Prof Michael Chege is one of the more progressive and consistent scholars on the Kenyan condition. But this article is problematic. Chege cautions about two centres of power, which the BBI report validation process cautioned against. The article’s value mainly lies on cautioning Kenya and African states against assuming that the French and DR Congo cohabitation model would work effectively. The article is less specific on how Kenya should balance the presidential vis-à-vis PM powers or the presidential and parliamentary systems. 122 …. Cf. Kivutha Kibwana (2020) “Lessons from Germany on devolved governance,” Nation, Nairobi. March 18, 2020, at https://www.nation.co.ke/kenya/blogs-opinion/opinion/lessons-from-germany-on-devolved-governance- 246912 (accessed 6/7/2020). 123 …. 20

How are the Prime Ministers appointed? What are their powers and functions? How does a vacancy arise in the office of the Prime Minister?124

10.5 Prime Minister in the (Post) BBI Debates in Kenya and Africa The legitimacy and constitutionality of the Building Bridges Initiative (BBI) on the rapprochement between President Uhuru Kenyatta and the Peoples’ President Raila Odinga, the “only two people” who swore an oath after the 2017 presidential elections. They are the principals…..125

The post handshake process witnessed Raila’s increasing influence in Government policy and decisions.126 This is besides Raila serving as special envoy, as the African Union High Representative on Infrastructure127 and working more closely with President Kenyatta in guiding the BBI debate, or the “reggae” movement…. Thus, BBI has its supporters and critics, with most Kenyans being clear on the need for constitutional reform and implementation.128

10.5.1 Prime Minister in the BBI Report and Validation Debate The Prime Minister debate in the (post) BBI context is based on the foregoing Kenyan, Tanzanian, African, French, British and related experiences in comparative constitutional democracy.

The Building Bridges Initiative (BBI), made findings and recommendations on the office of the Prime Minister (PM). The BBI report of 2019 stated thus on the office of the Prime Minister:

“1. Within a set number of days following the summoning of Parliament after an election, the President shall appoint as Prime Minister, an elected Member of the National Assembly from a political party having a majority of Members in the National Assembly or, if no political party has a majority, one who appears to have the support of a majority of MPs.”129

The BBI report also made a statement on approval of the Prime Minister nominee:

124 …. 125 Arts. 1, 10, 38, 255, 256, 257 are equally relevant. They deal with popular sovereignty; values and principles of governance, including public participation; political rights; and popular and parliamentary initiaves in constitutional amendments. Significantly, Njoya v. Attorney General left open the question of the source or origin of a constitutional amendment or review Bill. See Njoya v. Attorney General, op. cit., 126 …. 127 …. 128 See also chapter 12 on constitutional amendment and chapter 14 on constitutional reversals. 129 Cf Tanzania…. Bomas Draft… 21

“2. Approval by Parliament — The nominee for Prime Minister shall not assume office until his or her appointment is first confirmed by a resolution of the National Assembly supported by an absolute majority vote of MPs.130”

What if the Prime Minister nominee is not confirmed?

3. If the Prime Minister nominee is not confirmed, the President shall have another set number of days to make another appointment. This process shall continue until there is a successful nomination for Prime Minister.”131

The BBI report explained:

“A measure to ensure that this process is not indefinite, and that governance is continuous should be considered. The Taskforce would also like to point out that some members of the public expressed concern that the use of simple majorities may find it a challenge to guarantee inclusivity in Kenyan politics. There were proposals made for raising the bar and requiring higher majorities. The Taskforce members felt that this is a matter for a larger national conversation. 4. Dismissal — The Prime Minister may be dismissed by the President or through a vote of no confidence in the National Assembly.”132

With regards to the powers, functions and role of the Prime Minister, the BBI report 2019 stated thus:133

“1. The Prime Minister shall have authority over the supervision and execution of the day-to-day functions and affairs of the Government.134

2. The Prime Minister shall be the Leader of Government Business in the National Assembly.”

What is the relationship of the President and the Prime Minister in the BBI 2019 Report?

“3. On the President’s tasking, the Prime Minister will chair Cabinet sub-committees.135

4. In the exercise of his authority, the Prime Minister shall perform or cause to be performed any matter or matters which the President directs to be done.”136

What would be the remuneration or emoluments of the Prime Minister?

130 What is absolute majority? 50%+1? 131 …. 132 …. 133 134 …. 135 In some contexts, the PM Chairs Cabinet Committee…. 136 …. 22

“5. The Prime Minister will continue to earn his or her salary as a Member of Parliament with no additional salary for the prime ministerial role.”137

How would the Prime Minister work with the technocrats and bureaucrats to implement Government policy?

“6. The Permanent/Principal Secretary in the Office of the Prime Minister will chair the Technical Implementation Committee of Principal/Permanent Secretaries.138

7. To avoid the politicisation of the Public Service, the Permanent or Principal Secretaries will not be subject to Parliamentary approval. Their accountability will be strictly administrative and technical.”139

Following the BBI report of 2019, there were numerous resubmissions and media debates on Prime Minister. These included on the powers and functions of the Prime Minister. Prime Minister vis-à-vis President and Deputy President; the question of two (2) Deputy Prime Ministers. The Prime Minister models in debate include the Kenyan Grand Coalition, the Kenyan independence, the Tanzanian and the French models. Prof Jill Cotrell Ghai has assessed the Tanzanian Prime Minister thus:…. “This is described as being the Tanzanian model, and it is basically similar to the office in that country. Differences are that the Prime Minister in Tanzania could have a simple majority (not an absolute majority of all members). Observers will be forever asking ‘Who is the PM of Tanzania?’ the truth is that the PM is basically an assistant to the President. The status of the post is perhaps indicated by the fact that Salim Salim was PM for 1 year and then Deputy PM and later a Minister.”140

137 This unusual provision attracted comments from some including , Leader of Wiper Democratic Movement (WDM), former Vice President, former Foreign Affairs Minister…. Quote him…. It was probably to reassure Kenyans that while a new office of Prime Minister was being established, there would be no extra (exorbitant) public expense. The post 2017 constitutional reform debate has been characterized by the call to reduce the cost of running Government: punguza mzigo. This includes reducing a bloated or duplicated bureaucracy; some overpaid public officers, extravagance; wastages, corruption; and looting… See Chapter 16 on Public service remuneration for President, Deputy President, Cabinet Secretaries, Attorney General, Chief Justice and other public officials. 138 …. 139 Cf Art 132 …. of the 2010 Constitution. 140 Jill Cottrell Ghai () To cite fully….. The fact that one individual may serve in several or numerous offices in descending order of political or constitutional significance doesn’t determine the significance of the office. Most constitutional or political offices are not ranked in terms of promotion. For instance, Mwai Kibaki served as VP and Finance Minister, then (in the problematic) Health Ministry; then MP and leader of the , the fourth largest party in Parliament; then Leader of Opposition; then President…. 23

The question of inclusion, diversity and accountability in the top five executive offices is one of the main considerations. The offices are President, Deputy President, Prime Minister, two (2) Deputy Prime Ministers….141

Should these proposals be adopted, at least three articles of the Constitution of Kenya, 2010 would need to be amended. First, Art 151 would be amended to provide for the Prime Minister’s office in terms of establishment, appointment, functions (and powers?), vacancy, and disappointment or dismissal.

Second, Arts. 151 and 152 would also be amended to establish the office of the Deputy Prime Minister by adapting the essence of the provisions of Deputy Prime Minister. Article 152’s amendment would address the role of Deputy Prime Minister as a Cabinet Minister.

Third, Art 108, on the order of precedence would be amended to include Prime Minister in the list that includes the Speaker and National Assembly leadership.142

10.5.2 Prime Minister, BBI and the question of equivocation and constitutional reform Some of the main critics of the BBI process advance what appears to be a three pronged argument. First, that the Government, the “political class,” and Kenyans should focus on implementing rather than amending the Constitution of Kenya 2010.143

Second, that the proposed amendments ignore the “peoples” issues and focus on the Executive (and Legislature?) power structure, and especially the creation of three new offices: PM, and two DPMs.144

Third, some of them also argue, without offering concrete proposals, that politicians should not lead (or play a role in?) the reform process which should be led by “the people.”145 Among the leading BBI constitutional reform critics are politician Martha Karua, Prof Yash Pal Ghai, Prof Jill Cottrell Ghai, and Dr Willy Mutunga. Significantly, Prof Yash Ghai has a distinguished

141 That would increase the top executive offices from two…. The hypothesis, assumption and hope is that the five will enhance ethnic, regional, gender and political diversity. 142 In most (African) States, the Prime Minister and Deputy Prime Minister sit in the National Assembly….and not in the Senate…. The Prime Minister would replace the Leader of Majority and would be followed by the Leader of Opposition (who would replace the Leader of Minority) which has been proposed under the Building Bridges Initiative (BBI) report. See…. To cite paragraphs and pages of BBI…. 143 …. 144 …. 145 …. 24

scholarly record. He also led the Bomas process effectively…. Dr Willy Mutunga also had the record of having the reform movement from the academia and the civil society organizations following his detention…. Remarkably, the Ghai team have been equivocal in some of the writings and speeches, including on the Prime Minister. It is thus necessary to review the writings, speeches and actions of Prof Yash Ghai,146 Dr Willy Mutunga,147 and Prof Jill Cottrell Ghai.148

Prof Jill Cottrell Ghai actually concedes to the need to amend the Constitution on some issues, for instance,,….

On a proposal by and a discussion with the present author at the launch of Prof Anyang Nyong’o’s book Presidential or Parliamentary Democracy: Choices to be Made. Yash Ghai and Jill Cottrell Ghai conceded the necessity of that constitutional amendment to address structural constitutional constraints that impede constitutional implementation. Indeed, they both agreed to most of the arguments the present author made in a chapter they co-edited namely, “Amending the Constitution of Kenya 2010 post 2017.”149

146 Cf Yash Ghai (2019) “I support introduction of PM office,” Star, Nairobi, November 25, 2019, at https://www.the-star.co.ke/news/2019-11-25-i-support-introduction-of-pm-office-yash-pal-ghai/ (accessed 6/7/2020); Jill Cotrell Ghai (2020) “Why BBI will not solve Kenya’s problems,” Democracy in Africa, January 6, 2020, at http://democracyinafrica.org/bbi-process-kenya/ (accessed 8/7/2020); Yash Ghai (2018) “KATIBA: Is it time to change the Constitution or reflect on it?” at https://katibainstitute.org/katiba-is-it-time-to-change-the- constitution-or-reflect-on-it/ (accessed 6/7/2020); Yash Ghai (2020) “Handshake welcome, but enforce law as is before seeking changes,”…; Yash Ghai (2020) “Out goes the executive President, in comes the Prime Minister: What does it mean?”….. Yash Ghai (2020) “Is Uhuru Raila deal a product of fantasy?”….; Yash Ghai (2018) “The handshake building bridges and Bomas,” Star, Nairobi, December 15, 2018, at https://www.the- star.co.ke/siasa/2018-12-15-katiba-the-handshake-building-bridges-and-bomas/ (accessed 9/7/2020); Yash Ghai and Cotrell Ghai (2019) “Waiting for BBI: a new system with or without a referendum” Star, Nairobi, October 19, 2019, at https://www.the-star.co.ke/siasa/2019-10-19-waiting-for-bbi-a-new-system-with-or-without-a-referendum/ (accessed 9/7/2020); Yash Ghai (2020) “Selfish political elite at heart of push to change system laws,” Standard, June 21, 2020, at https://www.standardmedia.co.ke/article/2001375819/selfish-political-elite-at-heart-of-push-to- change-supreme-law (accessed 9/7/2020);… That is part of the Ghai – Mutunga ambivalence…. 147 Willy Mutunga (2019) “Limuru III: Sabasaba @29- A call to action,” Elephant, Nairobi, July 15, 2019, at https://www.theelephant.info/op-eds/2019/07/15/limuru-iii-sabasaba29-a-call-to-action/ (accessed 10/7/2020); Willy mutunga (2020) “People Power in the 2010 Constitution: A reality or an illusion?” Elephant, Nairobi, March 6, 2020, at https://www.theelephant.info/op-eds/2020/03/06/people-power-in-the-2010-constitution-a-reality-or-an- illusion/ (accessed 10/7/2020). 148 Yash Ghai and Cotrell Ghai (2019) “Waiting for BBI: a new system with or without a referendum” Star, Nairobi, October 19, 2019, at https://www.the-star.co.ke/siasa/2019-10-19-waiting-for-bbi-a-new-system-with-or-without-a- referendum/ (accessed 9/7/2020). 149 Ben Sihanya (2020) “Amending the Constitution of Kenya 2010 post 2017,” op. cit. 25

What alternative approach and methodology do they propose to resolve Kenya’s political, economic and constitutional or governance crisis? What is their individual and collective track record on the constitutional questions that raise? How do they and others explain the endurance of presidential imperialism post-2010?150

10.6 Office of the President and Cabinet Office in Harambee House in Kenya and Africa151 The President’s office in Harambee House has always served as the Cabinet Office too.152 According to Article 152(1), the Cabinet consists of the President, the Deputy President, the A-G and 14-22 Cabinet Secretaries.153 The Cabinet Office should provide the President and the Deputy President (formerly Prime Minister under the NARA Act, 2008) with public service support and should directly assist the President and Deputy President in performing all of their duties and responsibilities. In this arrangement, the President has been the Head of the Government (more accurately, Head of Executive) and Head of State; and the Deputy President as Deputy to the President. The Prime Minister was supervisor and coordinator of Government functions under the then Grand Coalition Government.154 This can be seen in Article 153(3) thus states that a Cabinet Secretary shall attend before a meeting of the National Assembly, or the Senate, when required by the committee, and answer any question concerning a matter for which the Cabinet Secretary is responsible.155

150 Did Ghai join a group the “Uwazi Consortium,” avowedly opposed to Building Bridges Initiative (BBI) constitutional reforms, a group that reportedly includes ex-Chief Justice Willy Mutunga? What explains Mutunga’s comments and activism on constitutional implementation rather than reforms? What barred him from progressively presiding over the Supreme Court Presidential Election Petition of 2013 that was replete with retrogressive interpretation, implementation and enforcement of Kenya’s progressive presidential electoral law. Instead, he led the court in relying on or was inspired by the military-derived jurisprudence in Nigeria and Uganda. Are constitutional implementation and amendments or reforms mutually exclusive? See Raila Odinga v. Independent Electoral and Boundaries Commission (IEBC) 2017; Chapter on Presidential Electoral Justice Post 2017….; See chapter 16 on amending the constitution of Kenya, 2010. 151 Cf. Secretary to the Cabinet… 152 Cf. Nigeria’s Asso Rock; South Africa (Pretoria.) 153 The Cabinet portfolio after the 2013 election is set to have 21 Cabinet Secretaries (CSs); the one unidentified Ministry is to give a chance to the President to add one slot if the President deems it necessary. What is the constitutionality of this portfolio? Cf. ads prepared by the Public Service Commission (PSC) for prospective Principal Secretaries (PSs)…. How were PSs appointed post 2013? Were CSs and PSs regarded as having fixed term contracts? What are the implications of any of the models on appointment and terms of service in terms of (effective or progressive) political economy and constitutional democracy? 154 …. 155 …. 26

The Cabinet serves as the administrative point of convergence for the National Executive, being the main Government secretariat….156 Through ongoing consultation with departments and agencies, the Cabinet Office provides the President and Deputy President with comprehensive information and analysis on contemplated policies and priorities. Specifically, it should provide information on organization of the Government and its relations with Parliament, the Judiciary, the private sector, civil society, development partners, the public and others.157 It should also provide information on appointment of holders of senior Government offices, overall spending programme of the Government, functioning of the cabinet decision-making system, development of major policies, management of intergovernmental relations and other specific issues. The Cabinet Office is also to provide the necessary support to the Deputy President and to the other Cabinet Secretaries. It is expected to be politically impartial and to coordinate operations at the centre of Government.158 The Cabinet Office is to be the custodian of records of present and past regimes and therefore “provides continuity during regime change and assists in the management of a smooth transition.”159 The functions of the Cabinet Office seemed to replicate those expected of the then Prime Minister as coordinator and supervisor of all Government functions and affairs under section 15A of the Constitution, and National Accord and Reconciliation Act, 2008,160 and also those of the Principal Secretary (PS) in the Office of the President under the Presidential Circular….161 Remarkably, during the ODM-PNU negotiations on the formation of the Grand Coalition Government, the allocation of the proposed Ministry of Cabinet Affairs was controversial. Supporters of President Kibaki said it had always been in Office of the President (OP).162

156 …. 157 …. 158 …. 159 …. There is debate on the limited documentation and coordination of Government by-laws, circulars, directives…. There is also limited follow up and implementation of Government policies on numerous issues, leading to duplication of commissioning of research, consultancies, feasibility studies…. See duplication of work on Standard Gauge Railway (SGR). The Court of Appeal declared the SGR tendering and procurement illegal. See Okiya Omtatah Okoiti & 2 Others v. Attorney General & 4 Others [2020] eKLR, Civil Appeal No. 13 of 2015. Kamau muthoni (2020) “Government illegally hired a Chinese firm to build SGR, Court declares,” Standard, Nairobi, June 20, 2020, at https://www.standardmedia.co.ke/article/2001375723/court-declares-sgr-deal-illegal (accessed 10/7/2020). The role of the cabinet Office (as a politically non-partisan institution) has been problematic in the past. Cf Handbook on Governing Responsibility, op. cit.,. 160 …. 161 …. 162 …. Cf Raila Odinga (2016) The Flame of Freedom, Mountain Top World Reader, Nairobi, op. cit.,. 27

Constitutionalists argued that NARA and practice indicated that the office is always under the coordination and supervisor of Government functions (the PM)163…. In addition, the structure of the Cabinet Office is not clear. The office does not seem to be clearly overseen by responsible organs under the Constitution, for instance, Parliament and other constitutional oversight or watchdog agencies like the Comptroller and Auditor General, or even the Ombudsman.164 Yet it is part of the public service structure.165 Relatedly, due to power grab by the office of the President and limited accountability, there were criticisms of withdrawals linked to the Office of the President Accounts, and whether such offices are exempted from the audit carried by the Office of the Auditor-General.166 And these constitutional developments inform the debate on the (dis)appointment, powers, and functions of the President, Deputy President, Prime Minister, and Deputy Prime Ministers in Kenya and Africa. 10.7 Election, (Dis)Appointment, Powers and Functions of the President, DP, VP, Premier, DPMs under the Constitution 2010, 1969 and National Accord and Reconciliation Act 2008167 Table 10.1 on Appointment, Powers and Functions of President, DP, VP, Premier, DPMs in Kenya and Africa Office Election/Appointment Powers and Functions Disappointment/Dis missal President Under Article 136 of the Under Article 132 of the Removal by Constitution, Constitution: impeachment under (1) A person qualifies for (1) The President shall-- Article 145 of the nomination as a presidential Constitution candidate if the person-- (a) address the opening of each newly elected Removal on grounds (a) is a citizen by birth; Parliament; of incapacity under (b) is qualified to stand for (b) address a special sitting Article 144 of the

163 Ben Sihanya and Duncan Okello (2010) “Mediating Kenya’s Post-election crises: The Politics and limits of power sharing agreement,” Chapter 3 of CODRALKA 1…. 164 Ombudsman is a term of art, not a gender category, just like “mannerless,” etc. To elaborate the point in a revised Chapter 8A and 8B on the Judiciary…. Ombudsman. Not Ombudsmen, not Ombudsperson…. 165 …. 166 Isaac Ongiri (2014) “MPs split on fresh Sh8.3bn audit,” Daily Nation, Nairobi, September 1, 2014, at http://mobile.nation.co.ke/news/MPs-Office-of-the-President-Scandal-Audit/-/1950946/2437900/-/format/xhtml/- /15ge3npz/-/index.html (accessed 20/10/14)..... 167 To review this Table in the light of Chapters 9A, 9B, 10…. 28

election as a member of of Parliament once every Constitution Parliament; year and may address (c) is nominated by a political Parliament at any other party, or is an independent time; and candidate; and (c) once every year-- (d) is nominated by not fewer than two thousand voters from (i) report, in an address to each of a majority of the the nation, on all the counties. measures taken and the progress achieved in the Under Article 136: realisation of the national (4) A candidate shall be values, referred to in declared elected as President if Article 10; the candidate receives-- (ii) publish in the Gazette the details of the measures (a) more than half of all the and progress under sub- votes cast in the election; and paragraph (i); and (b) at least twenty-five per (iii) submit a report for cent (25%) of the votes cast in debate to the National each of more than half of the Assembly on the progress counties. made in fulfilling the international obligations of (5) If no candidate is elected, a the Republic. fresh election shall be held within thirty days after the (2) The President shall previous election and in that nominate and, with the fresh election the only approval of the National candidates shall be-- Assembly, appoint, and may dismiss -- (a) the candidate, or the candidates, who received the (a) the Cabinet Secretaries, greatest number of votes; and in accordance with Article (b) the candidate, or the 152; candidates, who received the (b) the Attorney-General, second greatest number of in accordance with Article votes. 156;

29

(c) the Secretary to the (6) If more than one candidate Cabinet in accordance receives the greatest number with Article 154; of votes, clause (5) (b) shall (d) Principal Secretaries in not apply and the only accordance with Article candidates in the fresh election 155; high commissioners, shall be those contemplated in ambassadors and clause (5) (a). diplomatic and (7) The candidate who (e) consular receives the most votes in the representatives; and fresh election shall be declared (f) in accordance with this elected as President. Constitution, any other State or public officer whom this Constitution requires or empowers the President to appoint or dismiss.

(3) The President shall--

(a) chair Cabinet meetings; (b) direct and co-ordinate the functions of ministries and government departments; and (c) by a decision published in the Gazette, assign responsibility for the implementation and administration of any Act of Parliament to a Cabinet Secretary, to the extent not inconsistent with any Act of Parliament.

(4) The President may--

30

(a) perform any other executive function provided for in this Constitution or in national legislation and, except as otherwise provided for in this Constitution, may establish an office in the public service in accordance with the recommendation of the Public Service Commission; (b) receive foreign diplomatic and consular representatives; (c) confer honours in the name of the people and the Republic; (d) subject to Article 58, declare a state of emergency; and (e) with the approval of Parliament, declare war.

(5) The President shall ensure that the international obligations of the Republic are fulfilled through the actions of the relevant Cabinet Secretaries. Prime Appointed by the President Under section 4 of NARA: Could be Minister under the NARA. (1) The Prime Minister— removed from office (a) shall have authority to by a simple majority

31

co-ordinate and supervise vote in the execution of Parliament. Under the functions and affairs of NARA, the Government, including the office of the Prime those of Minister and the Ministries;168 Deputy Prime Minister (b) may assign any of the shall co-ordination become vacant only responsibilities of his if— office to (a) the holder of the the Deputy Prime office dies, resigns or Ministers, as well as one ceases to be a member of them to deputise for of him; the National Assembly (c) shall perform such otherwise than by other duties as may be reason of the assigned to him by the dissolution of President or under any Parliament; written law. (b) the National Assembly passes a resolution which is supported by a majority of all the members of the National Assembly, excluding the ex officio members, and of which not less than seven days notice has been given, declaring that the National Assembly has no confidence in the

168 Does this include Ministers? Ministries, departments and agencies (MDAs)? Cf. the suspension of then Agriculture Minister by the Prime Minister On corruption allegations…. See also… 32

Prime Minister or Deputy Prime Minister, as the case may be; or (c) the coalition is dissolved. Deputy Elected together with the Is the principal assistant of President President under one ticket.169 the President.

The DP “shall deputise for the President170 in the execution of the President’s functions.”

The DP “shall act as the President when the President is absent or temporarily incapacitated and during any other period that the President decides.” Deputy Appointed constitutionally by Prime the President Minister 1171 Deputy Appointed by the President. Prime Under NARA, they were 2, Minister 2 nominated by ODM172 and by PNU.173 The President and

169 …. 170 Cf “deputise the President”…. What is the difference? 171 The BBI debate evolved from whether a DPM was necessary; to the need for two DPMs in the validation of the BBI report, to whether there was a need to constitutionally or legally designate DPM1 and DPM2…. In some States, which DPM acts as PM depends on the issues, the political context and related factors…. 172 The coalition was constitutionally and legally (but not politically or actually) on the basis of real power sharing on the basis of portfolio balance, ODM nominated their representative and the President only did nominal, notional, peripheral, or administrative rather than the executive appointment.... 173 …. 33

PNU would nominate and appoint this in agreement

Source: Ongoing Research at Sihanya Mentoring and Innovative Lawyering on Constitutional Democracy, Regulatory and Admin Law in Kenya and Africa, 2020, Volume 1 & 2 ….

10.8 Case Study on the “Executive” or Powerful vis-à-vis Non-Executive? Prime Minister in Kenya and Africa Relatedly, the office of the Prime Minister (PM) was established in 1963; abolished in December 1964; debated in 1968, in the 2002-07 NARC Coalition, in 2005 Bomas Draft Constitution; and re-introduced pursuant to the implementation of the National Accord and Reconciliation Act, 2008 (NARA). The premiership has been in debate in the context of the adoption of the 2010 Constitution and the post 2010 reform debates.174

The NARA gave effect to the Agreement on the Principles of Partnership of the Coalition Government175 after the 2008 post-election violence triggered by the disputed 2007 Presidential elections.

It also provided for the formation of a coalition Government and the establishment of the offices of Prime Minister, two (2) Deputy Prime Ministers, Ministers, Assistant Minister and Permanent Secretary....176.

The National Accord and Reconciliation Act was entrenched in the Constitution of Kenya 2010. Presidential powers were reviewed in the transitional and consequential provisions under the Sixth Schedule of the Constitution of Kenya 2010.177

174 Ben Sihanya (2020) “Amending the Constitution of Kenya 2010 post 2017: Interests, Process and Outcomes,” in Jill Cottrell Ghai, Yash Pal Ghai and Emily Kinama (eds) (2020) KATIBA 2010: Achievements and Challenges, Katiba Institute, Nairobi, 77-80, at https://katibainstitute.org/download/katiba-2010-achievements-and-challenges/# (accessed 7/7/2020). …. 175 The agreement was part of the Serena negotiations presided over by former United Nations Secretary General, Koffi Anan…. Although NARA and the Grand Coalition Government were a negotiated settlement, this was essentially a “forced marriage.” See …. 176 See also Chapter 10 …. on Prime Minister…. [DP to be under a separate Chapter, and part of Chapter 9A and 9B]…. 177 Section 3 (2) of the Sixth Schedule of the Constitution of Kenya 2010. The National Accord and Reconciliation Act (NARA) provides that the Act shall continue to operate until the first General Elections held under this Constitution i.e. the March 4, 2013 General Elections…. 34

Under the 2019 Building Bridges Initiative (BBI) proposals, the President would appoint an MP from the largest party or coalition in Parliament as Prime Minister who would take up the position after being approved by Parliament.178 What nuances on the Prime Minister arose in the BBI validation process? The Prime Minister would have supervision and execution of the day-to- day functions and affairs of the Government.179 Meaning? Significance?

The debates on the Executive and powerful PM or Presidency vis-a-vis a Ceremonial PM or Presidency begs the question: Who is an executive PM and who is a powerful PM? What are the options for Kenya and Africa? What is the justification for Executive Prime Minister taking into account the quest for constitutional democracy, the rule of law, and Afro-Kenyanist theory and epistemology?

Some argue that absolute separation of powers among the arms of Government, or among officials were un-African.180 Others argue that is unconstitutional to render the leader of a majority party or a coalition of parties ceremonial…. Is the dualism between executive and non- executive accurate? Is it an either executive or non-executive or ceremonial PM? No.

In the Kenyan and African context, the quest for a powerful or Executive PM always seem to mean one and the same thing.181 This is as a result of the fact that most of the countries are always governed by an Executive President or Prime Minister who derives his powers from the Constitution.182

However, in …. and other parts of the world, an Executive President or Prime Minister is never necessarily powerful as such or per se. The nomenclature is not sufficient to define powers. The textual (and traditional) powers and functions are dispositive…. Indeed, a “ceremonial” President or PM is not necessarily less powerful.183 What matters is the constitutional (and legislative) text. And in some cases, like in the United Kingdom, constitutional tradition or practice matter a lot.184

178 These were subjected to further debate and validation from January 2020…. 179 Presidential Taskforce on Building Bridges to Unity Advisory (2019), BBI Report, op. cit. 180 Vincet Simiyu (1988) “The democratic myth in the African traditional society,” in Walter O. Oyugi, ES. Atieno Odhiambo, Michael Chege and Afrifa K. Gitonga (eds) Democratic theory and Practice in Africa, Heinmann, Portsmouth, NH, & James Currey, London. 181 Josephine Mayuya (2020) “Explainer: A powerful or an executive Prime Minister?” The Star, Nairobi, January 24, 2020, at https://www.the-star.co.ke/news/2020-01-24-explainer-a-powerful-or-an-executive-prime-minister/ (accessed 11/5/2020)…. 182 …. 183 …. 184 …. 35

A number of Presidents have no “Executive” titles or powers but still remain powerful insofar as the leadership of their state is concerned. Why did the Uhuru Kenyatta administration change the reference to the “presidency”185 and the “Executive” Office of the President?186

Remarkably, in France, executive powers are vested in a Prime Minister, who forms Government under the direction of the President.187 The President always remains the Head of State and is widely known leader of France on the global stage.188 This is probably due to the President’s power being drawn through elections.189

While the French Prime Minister is the Head of Government, even though appointed by the President with the approval of Parliament. The PM is in charge of coordinating the civil service, Government agencies and oversees the armed forces as well as leading the cabinet.190

In the United Kingdom, on the other hand, the Queen (Elizabeth II) is powerful even though she has no Executive or “efficient” functions or roles. Despite her limited political power, her position is strengthened by monarchical powers. These have been drawn from common law constitutional doctrines, for instance, “prerogatives”….191

The UK premiere (Boris Johnson, for instance) is powerful because of the vast political capital drawn from elections.192

In Israel, the Prime Minister is powerful but also has executive powers as he forms the Government. The position of the President largely remains ceremonial. In fact, on the global stage, the PM of Israel is always known and heard of. In Israel, the President is elected by the

185 See Chapters 9A and 9B above. 186 Ibid. 187 …. 188 …. 189 Some of the French Presidents include Emmanuel Macron (2017- ), Francois Hollande (2012-2017), Nicolas Sarkozy (2007-2012), among others. See…. 190 Examples of French Prime Ministers include Edourd Philippe (2017- ), Bernard Cazeneuve (2016-2017), Manuel Valls (2014-2016), Jean-Marc Ayrault (2012-2014), Francois Fillon (2007-2012), among others. 191 Some of the 20th and 21st century Monarchs are Elizabeth Alexandra (Elizabeth II), Albert Frederick Arthur George (George VI), Edward Albert Christian George Andrew Patrick david (Edward VIII), George Frederick Ernest Albert (George V), among others. See Kings and Queens of England and Britain, at https://www.historic- uk.com/HistoryUK/KingsQueensofBritain/ (accessed 7/7/2020). See the Brexit case law discussed in Chapters 8A and 8B… 192 See…. Some of the 20th and 21st Century Prime Ministers include Boris Johnson (2019- ), Theresa May (2016- 2019), David Cameron (2010-2016), Gordon Brown (2007-2010), Tony Blair (1997-2007), John Major (1990-1997) and Margaret Thatcher (1979-1990). See British Prime Ministers, at https://www.gov.uk/government/history/past- prime-ministers (accessed 7/7/2020). 36

Israeli Legislature (Knesset) for a single seven-year term.193 President Reuven Rivlin took the oath of office on July 24, 2014 for a period of 7 years.194

What is the role and significance of a Deputy Prime Minister in the relevant states, including in Kenya and Africa?

10.9 Deputy Prime Minister in Kenya and Africa My overarching argument is that the Deputy Prime Minister in Kenya and Africa is an important office in securing inclusion, economic efficiency, accountability and constitutional democracy. And that most officers, the public and the literature or scholarship, have generally failed to underscore its (potentially) progressive role….195

10.9.1 Conceptualizing the Deputy Prime Minister in Kenya and Africa What is the Afro-Kenyanist theory on Deputy Prime Minister? What is the comparative or borrowed theoretical framework on Deputy Prime Minister?

Which states provide the Deputy Prime Minister model?

How is the Deputy Prime Minister appointed? What are the powers and functions of the Deputy Prime Minister? What are the rights and liberties of the Deputy Prime Minister? What are the DPM’s privileges and immunity?

How does the DPM relate to the President? Deputy President? Prime Minister? The other Deputy Prime Minister and Cabinet Minister where these offices exist? How does vacancy occur in the Deputy Prime Minister’s office?

Kenya has had two Deputy Prime Ministers served concurrently. (Wycliffe) Musalia Mudavadi and Uhuru Muigai Kenyatta were DPMs under PM Raila Odinga and President Mwai Kibaki. Kenyatta served from 2008-….196 And Mudavadi served from 2008-2012….197

193 Some of the Israel Presidents are Reuven Rivlin (2014- ), Shimon Peres (2007-2014), Moshe Katsav (2000- 2007), Ezer Weizman (1993-2000), Chaim Herzog (1983-1993, among others. The Prime Ministers include Benjamin Netanyahu (2009- ), Ehud Olmert (2006-2009), Ariel Sharon (2001-2006), Ehud Barak (1999-2001), Shimon Peres (1995-1996), among others. See…. 194 Cf. Ethiopia. Tanzania (President and Prime Minister), Bomas (President and Prime Minister)…. 195 …. 196 …. 197 …. 37

10.9.2 Deputy Prime Minister in the Independence (Lancaster House) Constitution The Independence Constitution had no provision on DPM….198 … was the de facto Deputy Prime Minister partly because of the portfolio he held, and the political relationship with Prime Minister Kenyatta. He and Kenyatta had agreed Jaramogi would be Finance Minister.

However, Kenyatta arbitrarily changed without consulting Jaramogi partly due to pressure from the British (Governor General) …. Jaramogi got information of the decision (and intrigues) from (Ramogi) Achieng’ Oneko, their mutual friend, and who had been part of the Kapenguria 6 with Kenyatta….199

10.9.3 Deputy Prime Minister in the National Rainbow Alliance Coalition (NARC) Memorandum of Association and administration, 2002-2007 The NARC MoU proposed…. two? DPMs…. What were the proposed functions of DPMs? These were to be occupied by….200

The other key offices under the NARC MoU were the Vice President?201 What were to be their powers and functions?....202 How were the VPs to relate to the DPMs?

10.9.4 Deputy Prime Minister in Kenya under the National Accord and Reconciliation Act, 2008-2013 Section 15A of the Constitution created the offices of two (2) Deputy Prime Ministers in the . The National Accord and Reconciliation Act 2008 further provided that the Deputy Prime Minister “shall be appointed from each of the two partners in the Grand Coalition Government” (ODM and PNU).203 Their functions included assisting the Prime Minister in his constitutional duties, as “shall be assigned by the Prime Minister.”

The following two were appointed Deputy Prime Ministers. First, Mr. Wycliffe Musalia Mudavadi, then ODM Deputy Party Leader, who had been the “running mate” to Prime Minister

198 …. 199 Fitz R. S. de Souza (2019) Forward to Independence: My Memoirs, Independently Published…. See also Chapter…. on Constitutional Founding of the Kenyan and African State….; Chapter 19 on Assessing Kenya’s Presidents, DPs and VPs…. 200 …. 201 …. 202 …. 203 There was debate that both Deputy Prime Minister’s should go to ODM given that PNU already had the President and Vice President Kalonzo Musyoka (ODM-Kenya), under PNU) …. Raila Odinga (2016) The Flame of Freedom, Mountain Top World Reader. 38

Raila Odinga, was nominated by ODM.204 He was also the Minister for Local Government, responsible for the implementation of the Local Government Act, Cap 265 (repealed). His Ministry coordinated the work of the Task Force on devolved Government….205

Second, Mr Uhuru Muigai Kenyatta, the KANU Chairman was nominated by PNU. He was also appointed Minister for Finance.206

How did the DPMs perform? What did they do after leaving office?207

In the case of Kenyatta, he later became the Party Leader (PL) of (TNA), (JA) (with William Ruto’s United Republic Party (URP). From 2016, Kenyatta led the (JP).208 Kenyatta became President from 2013- .209

Mudavadi insisted on serving as DPM even after being co-opted as prospective presidential aspirant or candidate by President Mwai Kibaki, in order to reduce the popularity of ODM and PM Raila Odinga who had sponsored him to the DPM office….210 Mudavadi later became Party Leader of United Democratic Forum (UDF) Party,211 and later (ANC), and a NASA Coalition co-principal or partner….

According to s. 4(4)(a) the National Accord and Reconciliation Act (NARA), a Deputy Prime Minister’s (DPM’s) office would become vacant for at least five reasons. First, when the holder of the office died.212 Second, when the holder of the office resigned.213 Third, when the holder of the office ceased to be a member of the National Assembly otherwise than by reason of the dissolution of Parliament. Fourth, by a vote of no confidence214 by the National Assembly. And fifth, when the Coalition was dissolved.215

204 “Running mate” was not a constitutional requirement then, unlike under Art…. 2010…. 205 Some of the experts included (the future Dr) Mutakha Kangu and Kipchumba Murkomen, and DPM nominees…. 206 …. 207 …. 208 …. 209 See Chapters 9A and 9B, including the debate on the Kenyatta succession…. 210 …. 211 His running-mate in 2013 was Mr Jeremiah Kioni. UDM was reportedly cobbled up by the Kibaki State House and Presidential Advisors…. including Prof Nick Wanjohi. See…. 212 …. 213 …. 214 Mudavadi Cemetry corruption saga ….in which Mudavadi had allegedly participated in the procurement of an expensive (disused) quarry to be used as a cemetery. See Standard team (2010) “Mudavadi probed over saga,” Standard, Nairobi, March 10, 2010, at https://www.standardmedia.co.ke/article/2000005300/mudavadi-probed-over- cemetery-saga (accessed 9/7/2020)….; Uhuru Kenyatta. 9.2B ’computer‘ error. See Alphonce Shiundu and 39

10.10 Deputy Prime Minister in the United Kingdom, France and Germany and Foreign Jurisdictions What is the Afro-Kenyanist theory on Deputy Prime Minister? What is the comparative or borrowed theoretical framework on the Deputy Prime Minister? Which states provide the de jure and de facto Deputy Prime Minister model? How is the Deputy Prime Minister appointed? What are the powers and functions of the Deputy Prime Minister?216

What are the rights and liberties of the Deputy Prime Minister?

What are the DPM’s privileges and immunity?217

How does the DPM relate to the Queen or King, and PM in the UK? President? Deputy President? Prime Minister? In France? Another Deputy Prime Minister in the relevant jurisdictions? and Cabinet Minister where these offices exist? How does vacancy occur in the Deputy Prime Minister’s office?

10.11 Deputy Prime Minister in Tanzania, Ethiopia, Uganda How are Deputy Prime Ministers appointed?

What are the powers and functions of the Deputy Prime Minister?

Who were the Tanzanian DPMs historically? Did Salim Ahmed Salim serve first as PM, DPM? Then Minister? Why?

What are the rights and liberties of the Deputy Prime Minister? What are the DPM privileges and immunity?

How does the DPM relate to the President? Deputy President? Prime Minister? Another Deputy Prime Minister and Cabinet Minister where these offices exist? How does vacancy occur in the Deputy Prime Minister’s office?

Macharia Mwangi (2009) “Uhuru quizzed over Shs. 9.2b ’typing error’” Daily Nation, May 11, 2009, at https://www.nation.co.ke/news/1056-597228-k3hlk2z/index.html (accessed 26/5/2020); There were also claims of insider dealing or trading in the Ministry of Finance’s policy and circular that the Passat motor vehicles to replace Mercedes etc….[to review] See…. 215 What of the Political Parties Act, 2011 (PPA) and other laws?.... To separate generic from specific 216 …. 217 …. 40

10.12 Deputy Prime Minister in the BBI Reform debates in Kenya and Africa The BBI validation process proposed two Deputy Prime Ministers to secure inclusion and power sharing at the top of the Executive….218

The debate was partly informed by Kenya’s experience with DPMs. First, at independence, and second, during the Grand Coalition Government in 2007-2013.219

What is the Afro-Kenyanist theory on Deputy Prime Minister in the post 2010 and BBI debates? What is the comparative or borrowed theoretical framework on Deputy Prime Minister? Which states provide the Deputy Prime Minister model?

How is the Deputy Prime Minister appointed?

What are the powers and functions of the Deputy Prime Minister?

What are the rights and liberties of the Deputy Prime Minister? What are the DPM’s privileges and immunity?

How does the DPM relate to the President? Deputy President? Prime Minister? The other Deputy Prime Minister and Cabinet Minister where these offices exist? How does vacancy occur in the Deputy Prime Minister’s office?

10.13 Post 2017 and BBI Debates on Reforming the Presidency, Premiership ... in Kenya and Africa The foregoing positions are under the 2010 Constitution while some were under the 1969 Constitution as amended in 2008 and under the National Accord and Reconciliation Act (NARA), 2008-2013. What executive-legislative model should Kenya adopt in the context of BBI and the post 2010 (2017) debate generally? Fill in the blanks in the Table below:

Table10.2: President, Deputy President, Prime Minister, Deputy Prime Minister in Kenya

Office Election or Powers and Disappointment or Appointment Functions Dismissal President

218 …. 219 …. 41

Prime Minster Deputy President Deputy Prime Minister (DPM) Deputy Prime Minister Cabinet Secretary Elected, nominated? Sitting in the National (CS), Cabinet Elected, nominated? Assembly (NA)? What of Principal Minister (CM), Sitting in the National Secretary?220 technocrat? Assembly (NA)? Cabinet Secretary (CS), Cabinet Minister (CM), political?

Source: Ongoing Research at Sihanya Mentoring and Innovative Lawyering on Constitutional Democracy, Regulatory and Admin Law in Kenya and Africa, 2020, Volume 1 & 2….

10.14 Formal and Informal Titles of Prime Minister and Deputy Prime Minister in Kenya and Africa221

Table 10.3: Formal and informal titles of PMs and DPMs in Kenya and Africa Prime Minister Deputy Prime Minister Waziri Mkuu Naibu Waziri Mkuu Aliases for PM Kenyatta, Raila Odinga222 DPM Uhuru Kenyatta, and Musalia Mudavadi223

220 See Chapters 14 on Administrative Bureaucracy and Regulatory Process and Justice in Kenya and Africa: Cabinet, Cabinet Secretary, Secretary to the Cabinet, Chief Administrative Secretary, Principal Secretary, HOPS (HOCS), and County Administration (CPSB, County Secretary) in Kenya and Africa…. 221 How were Jomo Kenyatta and Raila Odinga aka when they served as Prime Minister respectively? 222 The focus should be on when they served. 223 The focus should be on when they served. 42

10.15 Reforming the Prime Minister’s Office in Kenya and Africa We adopt a four pronged typology on Prime Minister and Deputy Prime Minister. First, my overarching argument is that the Prime Minister and Deputy Prime Minister play the important role of inclusion, accountability to the people through the Legislature, and enhancing constitutional democracy from an Afro-Kenyanist constitutional and political theory and practice……

Second, we adopted a three pronged typology and methodology in researching and analysing the office of the Prime Minister and Deputy Prime Minister in Kenya and Africa. First, review of the Constitution, laws, policies, and literature. Second, review of case law. Third, content analysis of the print, electronic, and digital or social media …. on PM and DPM in Kenya and Africa.

Third, we made the following three key findings and conclusions on PM and DPM in Kenya and Africa. First, Kenya has intensely debated the role of PM on at least four occasions since independence, while the DPM has been debated intensely about two or three occasions. Second, the most intense debate on both the PM and DPM offices has been in the context of the Building Bridges Initiative (BBI). Third, the PM and DPM debate on Kenya is influenced by the Kenya and Africa, and broader experience in comparative political economy, constitutional democracy, and sustainable development.

Fourth, we recommend the following reforms to the office of the PM and DPM in Kenya and Africa. First, the PM and DPM should be appointed in a manner consistent with constitutional democracy. Second, their functions and powers should be balanced with those of the Head of State….to avoid an imperial or a ceremonial President. Third, the PM and DPM offices should be structured to work seamlessly with the technocrats, bureaucrats and Legislature. Clearly, there is need for further research by the author and other scholars on the role of the office of the PM and DPM in promoting constitutional democracy in Kenya and Africa.

...the discourse continues in the Oracle’s Shrine, class, articles, books, online, in the blogosphere, social media, and appropriate fora…

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