CHAPTER 10 PRIME MINISITER AND DEPUTY PRIME MINISTER IN KENYA 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 Africa Vol. 1: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring & Innovative Lawyering, Nairobi & 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 Executive-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, South Africa, Uganda, 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 Parliament? 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 Jomo Kenyatta was Prime Minister. And second, ODM’s Raila Odinga 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 Mbiyu Koinange 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 Uhuru Kenyatta 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 (majimbo), 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 Head of State….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.