Constitution Working Paper Series No. 2 The Presidency and Public Authority in Kenya’s new Constitutional Order The Presidency and Public Authority in Kenya’s new Constitutional Order The Presidency and Public Authority in Kenya’s new Constitutional Order Ben Sihanya SID Constitution Working Paper No. 2 ii The Presidency and Public Authority in Kenya’s new Constitutional Order The Presidency and Public Authority in Kenya’s new Constitutional Order Constitution Working Paper No. 2 Published by: Society for International Development (SID) Regional Office for East & Southern Africa Britak Centre, First Floor Ragati/Mara Road P.O. Box 2404-00100 Nairobi, Kenya Tel. +254 20 273 7991 Fax + 254 20 273 7992 www.sidint.net © 2011, Society for International Development (SID) ISBN No: 978-9966-029-01-0 Printed by: The Regal Press Kenya Ltd. P.O. Box 46166 Nairobi, Kenya Design & Layout: Sunburst Communications Ltd. P.O. Box 43193-00100 Nairobi, Kenya Email: [email protected] SID Constitution Working Paper No. 2 The Presidency and Public Authority in Kenya’s new Constitutional Order iii Abstract The role of the presidency in Kenya has animated and dominated popular and political discourses on constitution making, constitutional processes, and constitutional review and implementation, as well as political processes, since 1963. This study pursues a structured juridical-academic and policy discourse on the presidency in Kenya through four inter-related issues. First, the study reviews the evolution of the office of the presidency in Kenya since 1963. This includes the Jomo Kenyatta regime (1963–1978) and the politics of power, resource distribution, and the rise of the imperial and populist presidency. Then came the Daniel arap Moi presidency (1978– 2002), which sought to consolidate the imperial and populist tradition of the Kenyatta era. Mwai Kibaki’s presidency in the pre-coalition phase (2002–2007) was largely a continuum of the Kenyatta–Moi administrations. Finally, precipitated by the urgent need to stem the violence following the 2007 presidential election, the Grand Coalition Government of Kibaki’s Party of National Unity (PNU) and Raila Odinga’s Orange Democratic Movement (ODM) (2008–) ushered in a semi-presidential system without parallel; in these years the exercise of presidential power became somewhat circumscribed. Second, the paper explores the various types of bureaucracy based at State House or centred on the presidency. These include the Cabinet, the provincial administration and State House. Third, it assesses the impact of the presidency and the associated bureaucracy on public authority and public administration. Finally, the study evaluates the impact of the Constitution of Kenya 2010 on the presidency, public authority and public administration. It reviews the normative, institutional and structural checks and balances, including the provisions of the Bill of Rights and decentralization (or ‘devolution’), and their effect on the presidency and the exercise of public authority. Further, the study assesses other constitutional institutions like the Judiciary, Parliament and the restructured Executive. These are explored in light of the impact these institutions are likely to have on the presidency, as well as on the exercise of public power and public authority in Kenya generally. SID Constitution Working Paper No. 2 iv The Presidency and Public Authority in Kenya’s new Constitutional Order Prof. Ben Sihanya holds a Juridical Science Doctorate (JSD) from Stanford Law School, USA. A scholar and public intellectual, he has 20 years of experience in teaching, research, consulting and inter-disciplinary public interest law, with a focus on intellectual property, constitutionalism, education law and ICT law. He has published and spoken on these topics in Africa, the USA, Europe and South America. He is the founder CEO of Innovative Lawyering and Sihanya Mentoring, Nairobi and Siaya. He teaches law and he is a former Dean at the University of Nairobi Law School, and a member of the national Task Force to Realign Education to the 2010 Constitution and Vision 2030. SID Constitution Working Paper No. 2 The Presidency and Public Authority in Kenya’s new Constitutional Order v The SID Constitution Working Paper Series In 2010, on the cusp of Kenya’s new constitutional In the first set of papers, Dr Joshua Kivuva, Prof. dispensation, the Society for International Ben Sihanya and Dr. Obuya Bagaka, separately Development (SID) embarked on a project examines how the new constitution has re-ordered called ‘Thinking, Talking and Informing Kenya’s nature of Kenya’s post-colonial state, especially Democratic Change Framework’. Broadly stated, how it has deconstructed the logic of state power the objective of the project was both historical and and rule, deconstructed the ‘Imperial Presidency’, contemporary: that is, to reflect on Kenyans struggles and how it may re-constitute the notorious arm of for a democratic order through a book project, and post-independent Kenya’s authoritarian rule: the to examine the significance of a new constitutional provincial administration. order and its legal and policy imperatives, through a Working Paper Series. The next set of papers in this series, by Dr. Othieno Nyanjom and Mr. Njeru Kirira, separately looks Consequently, SID commissioned research on some at the administrative and fiscal consequences of of the chapters or aspects of the new constitution that Kenya’s shift from a unitary-state to a quasi-federal require further policy and legislative intervention, state system. Whereas Dr. Nyanjom examines culminating in ten Working Papers. These papers, the anticipated administrative and development mostly by Kenyan academics, are intended to help planning imperatives of devolving power; Mr. Kirira shape public discussions on the constitution and to examines the anticipated revenue and expenditure build a stock of scholarly work on this subject. concerns, which may arise in a state with two- tier levels of government. Both discussions take These papers seek to contextualize some of the key place within the context of a presidential system of changes brought about by the new constitutional government that the new constitution embraces. order, if only to underscore the significance of the promulgation of the new constitution on August The paper by Dr. Musambayi Katumanga examines 27, 2010. The papers also seek to explore some the logic of security service provision in post-colonial policy, legislative and institutional reforms that may Kenya. Dr. Katumanga argues that Kenya needs to be necessary for Kenya’s transition to a democratic shift the logic of security from regime-centred to order. citizen-centred security service provision. However, despite several attempts in the recent past, there are The Working Papers explore the extent to which still several challenges and limitations which Kenya the new constitution deconstructs the Kenyan post- must redress. The new constitution offers some room colonial state: how it re-calibrates the balance of for instituting a citizen-centric security reforms. power amongst branches of government and reforms government’s bureaucracy; redraws the nature of The paper by Prof. Paul Syagga examines the vexed state-individual relations, state-economy relations, question of public land and historical land injustices. and state-society relations; and deconstructs the It explores what public land is, its significance and use of coercive arms of the government. Lastly, how to redress the contention around its ownership the papers examine some of the limitations or use. Similarly, the paper examines what constitutes of the new constitution and the challenges of historical land injustices and how to redress these constitutionalism. injustices, drawing lessons from the experiences of SID Constitution Working Paper No. 2 vi The Presidency and Public Authority in Kenya’s new Constitutional Order other states in Africa that have attempted to redress the public and academic discussions on Kenya’s similar historical land and justice questions. new social contract in a manner that secures the aspiration of the Kenyan people. The papers by Dr. Adams Oloo, Mr. Kipkemoi arap Kirui and Mr. Kipchumba Murkomen, separately SID would like to sincerely thank all those who examines how the new constitution has reconfigured have made the publication of these papers possible, representation and legislative processes. Whereas especially those who participated in the research Dr. Oloo examines the nature of the Kenya’s conceptualization meeting and peer-reviewed the electoral systems, new provisions on representations papers such as: Dr. Godwin Murunga, Prof. Korwa and its limitations; arap Kirui and Murkomen look at Adar, Ms. Wanjiru Gikonyo, Dr. Joshua Kivuva, Dr. the re-emergence of a bicameral house system and Richard Bosire, Dr. Tom Odhiambo, Ms. Miriam the challenges of legislation and superintending the Omolo and Dr. Mutuma Ruteere, for their invaluable executive. input. If the other nine papers examine the structural Lastly, we would like to acknowledge the invaluable changes wrought by the new constitution; the tenth support of the SID staff: Hulda Ouma, Irene Omari, paper, by Mr. Steve Ouma, examines the challenges Gladys Kirungi, Jackson Kitololo, Aidan Eyakuze, and limitations of liberal constitutional order, Edgar Masatu, Stefano Prato, and Arthur Muliro; especially the tensions between civic citizenship as well as Board members Sam Mwale and Rasna and cultural citizenship from an individual