“African leaders should ultimately be assessed by their commitment to enhance the values of democracy, and justice for the victims of serious crimes- not by their unrepentant efforts at nurturing the culture of impunity at the expense of the rights of the citizens. The notion that political power can be a safe haven for impunity would create dangerous double standard.”- Timothy Mtambo

A government of the people, by the people, for the people. These were the ideals of democracy anticipated by Kenyans after a hard fought struggle for independence. However, the government and leadership were marred by selective enforcement of the law as well as a host of national institutions being undermined by a closed system of graft and patronage. Additionally, in true African fashion President Moi was intolerant of dissidents, particularly those who wanted a functional democratic system and the rule of law as the basis of governance. This tumultuous period in the early 1990’s finally culminated in the Saba Saba Movement which was instrumental in ensuring Kenya’s democratic transition. With added pressure from the movement, President Moi finally succumbed to the calls for a Multi-party system and in December 1991, in what was a significant triumph for democracy and the Saba Saba Movement, Article 2A of the then Constitution was repealed doing away with a one-party system. Several new political parties were formed with the pilot multi-party elections being held in 1992.

One of the major gains following this democratic transition was the provision for a limited presidential tenure of two five-year terms. Despite great opposition, President Moi vied and subsequently won the 1992 elections. He then clung to power for another term after winning the 1997 elections. As his retirement year drew close, there were major speculations as to whether he would engineer and influence a Constitutional amendment that would see him serve a third term in office or simply step down. As per article 9 of the old Constitution, Moi was barred from seeking re-election for a third term on account of him having already completed his second term, bringing to a close the infamous Moi era. The two-year term limit was adopted in the new Constitution enacted in 2010 during the reign of President Mwai Kibaki, an indication that it had been acknowledged as the standard of presidential incumbency. While presidential terms limits are widely accepted in the West as the standard and conventional way to practice politics, this has not been the case in Africa. African leaders have been known to manipulate state machinery in ensuring an extended tenure in power. This is clearly evidenced in neighbouring Uganda where President Museveni is serving his 34th year and currently on the campaign trail for yet another term.

The wording of our Constitution is against a “person” serving for more than two terms. More specifically, Section 142(2) of the Kenya Constitution 2010 provides that “A person shall not hold office as President for more than two terms”. It is instructive to note that the person is distinct from the office as an institution.  This safeguard was put in place to bar an individual from presiding over the government for more than two five-year terms. Thus, amending the constitution to put in place a Prime Minister who has already served as Head of State is not only unconstitutional but also exhibits wanton disregard for the ideals of democracy the constitution seeks to uphold.

Currently in Kenya, there is a continuing clamor on the efficacy of the two term limit on presidential tenure, with repeated calls for its revocation. Champions for the shift have come with different proposals such as the Punguza Mzigo Bill, which sought to introduce a one seven-year term to the presidential tenure. Other proposals have been advanced to abolish the presidential system and introduce a parliamentary system not subject to term limits. This is in a bid to extirpate the ‘winner takes all’ system, which has been brandished in the BBI report as a key basis of ethnic unrest in Kenya particularly post-election violence. In the proposed parliamentary system, President Uhuru Kenyatta has been peddled as a possible Prime Minister with proponents arguing that President Kenyatta could legally serve as PM in the post 2022 government after completing his two terms under the current Constitution.

However, the question that comes up is would such premiership by Uhuru be legal and Constitutional? My simple answer is an emphatic NO.

According to the BBI report, 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 which appears to have the support of a majority of MPs. The nominee for Prime Minister shall only assume office when his or her appointment is first confirmed by a resolution of the National Assembly supported by an absolute majority vote and If the Prime Minister nominee is not confirmed, the President shall have another set number of days to make another appointment.

To put it into context, ideally the President is essentially the CEO of the country. If you transfer the functions currently performed by the President, and allocate them another title-say Prime Minister, you have merely altered the title but not the functions of the office. This is to say an individual serving as PM would really in truth be CEO, but without the title of President. Since the restriction provided in the Constitution is against the person as an individual serving for more than two terms, you may not simply modify the title of the office then put the same individual to perform the same functions of President but with a new title.  Provided the functions of that office constitute those of the CEO, the office is unaffected by a change only in title but not job description.

So what are the duties/functions of the President today? The President is inter alia the head of state and government; the Commander in Chief as well as Cabinet chair and subject to parliamentary approval he appoints, Judges, Constitutional Commission members, and Cabinet Secretaries.  In contrast, as per the BBI report, The Prime Minister shall have supervision and execution of the day-to-day functions and affairs of the Government, he/she shall be the Leader of Government Business in the National Assembly and on the President’s tasking, the Prime Minister will chair Cabinet sub-committees. Therefore, a person who has served as President could not then serve as PM because this would be arguably a similar job but with a different title.

Just like in the UK where the government operates through customs and practices developed over time, the two-term limit on Presidential terms in Kenya has developed from a demand by reform activists to a fundamental principle of our Constitution.  To attempt to do away with this principle would do so much damage to the Constitution and beliefs of the citizens developed over 30 years of Constitutional clamor, it would amount to an injustice on the Constitution.

Consequently, as a safeguard to such kind of drastic moves the framers of the Constitution established the Supreme Court of Kenya. Kenyans have with time appreciated that courts are serious on enforcing Constitutional standards and have faith in a strong and independent judiciary. The Constitution enacted after independence in 1963 was a fine document, but it suffered numerous changes due to short term interest to the extent that it was no longer recognizable from the original document.  Currently, if the politicians were successful in changing the presidential term limit provided under the Constitution, particularly through a referendum, one could seek redress in the High Court with the Supreme Court available as the final word in the event of an unfavorable outcome. The question that would come up for determination is whether it’s prudent to modify the Constitution to an extent that not only the provisions are affected but also the very spirit of the Constitution as well.

Another norm of practice and even a Constitutional provision is that the second biggest party forms the official opposition. This is a far cry from the Moi era, where multy-partysim was suppressed and frowned upon, with the human rights of dissidents foully violated. After the 2002 general elections, KANU became the official opposition and Uhuru Kenyatta the official leader of opposition. Not very long thereafter, Uhuru Kenyatta abdicated his role as leader of the opposition and became a supporter of the Kibaki government. Rather than offering his candidacy in the 2007 general election, he backed Mwai Kibaki who was the government candidate-a move that would result in him taking the reins 5 years later. Now in his second term, proposals are being posited that he moves from being President to serve in a new office of PM with the same functions as the presidency that he would be vacating. An unfortunate pointer that the President does not appreciate the principles of democracy as well as the Constitution.

However, Kenyan democracy has significantly advanced from the days of the independence Constitution. With bodies like the Supreme Court of Kenya and a more independent judiciary, it is expected any attempts to alter the basics of the Constitution will be met with vehement resistance. Add to this an enlightened and more daring populace in the age of digital advancement and any move to alter the spirit of the Constitution would more likely fail. In conclusion, there is need for Kenyans to be awake to the danger of select individuals who are driven by a perpetual hunger to change the constitution for their own selfish interests.