Sunday, September 21, 2003
The parliamentary system
is simply unworkable
By MAKAU MUTUA
The pitched debate at Bomas on whether Kenya needs a presidential or parliamentary system of government suffers from multiple crippling deficits. It is badly misinformed, grossly misdirected, and irretrievably paralysed by the most base of human pursuits, the quest for individual, personal power. Delegates must step back from the brink, take a deep breath, and let only logic, evidence, and practice be their guide.
In any modern state, and Kenya aspires to be one, the executive is the first among the three co-equal branches of government. It is the repository of the sovereignty and territorial integrity of the republic. That is why the constitution must be clear, categorical, and unambiguous in the construction of the executive and the demarcation of powers between it and the legislature and the judiciary.
Otherwise, conflation and the impermissible overlap of powers among the three arms of government invites gridlock, constitutional crisis, and the abrogation of the doctrine of separation of powers without which democracies either collapse or are rendered hopelessly dysfunctional. Apart from the bill of rights, the definition of the structure of government is the most delicate exercise in constitution-making.
Delegates must discard all extraneous narrow agendas and pay attention only to the most noble and sacred motives in their decision on the structure of government. Firstly, it is a false choice, and a political trap, to present the delegates with a fait accompli to choose only between the presidential and the parliamentary systems. In reality, very few countries have instituted pure, watertight distinctions between the two systems. Hybridity is the rule, not the exception.
Secondly, delegates must ask themselves what disease needs to be cured, and then choose the medicine based on the correct diagnosis. What Kenya needs is an ironclad and abuse-free system of checks and balances in which the executive - and the President in particular - will never again be omnipresent, omnipotent, and omniscient.
The system of checks and balances in a democracy is designed to accomplish several purposes. It diminishes the proclivity of the executive to be oppressive and dictatorial. It permits the other arms of government to operate autonomously, and free of dictation and control from each other.
But there is an important, critical caveat on which the delegates must keep their eyes. The system of checks and balances � in any structure of government � is not meant to emasculate the executive or create any ambiguity in the head of state, in effect the symbol and substance of a nation�s sovereignty. From the view of constitutional law, whether one goes presidential or parliamentary is less important than the avoidance of conflict between the executive and the legislature.
The rule of thumb is that states function best without competing and conflictual centres of power, whether within or among the three arms of government. Bomas must therefore avoid creating a structure of government that seduces the different arms of the state to a fatal duel. Devolving power from one branch to another is one thing. But creating a hydra in the state is quite another. We must avoid the latter at all cost.
Thirdly, delegates must be informed by history and practice, not wild speculation or narrow personal agendas. What is the verdict of history? Which structure of government - parliamentary or presidential - has worked best, and why? Over the stretch of history, most states have preferred presidential systems to parliamentary ones. The reasons for this are varied, but the most important ones are political stability, national cohesion, and the imperatives of development.
Parliamentary systems are prone to political collapse, constitutional crises, and incoherence in the governance of the state. The coalitionary tendency of a parliamentary system - a simple legislative majority is usually the norm in a parliamentary system - puts governments at the short-term mercy of political operatives. History has repeatedly demonstrated that smaller political parties, which are indispensable in most parliamentary systems, usually bring governments down.
There are a number of spectacular examples. Perhaps the most prominent is Italy whose governments generally last as long as a bar of soap. Others are Israel, Japan, and even India. But the saving grace of these particular parliamentary governments is the stability of their political cultures, and the maturity of their constitutional ethics.
Closer to home, on the African continent, the parliamentary system of government has never worked in any single African state. In fact, it has been the cause of much grief, national failure, and catastrophe wherever it has been tried. Or even where there was confusion or dangerous conflation between the parliamentary and presidential systems. Zimbabwe, the Congo, Nigeria, Uganda, and several others come to mind.
It seems clear that Kenyan political parties are a fiction. The parliamentary system cannot be constructed on fictions. Except Kanu that has the identity of a conservative, authoritarian, and anti-intellectual ethos, none of our parties have a coherent, cohesive, core identity. Narc may get there, but it has a lot of distance to cover. We do not, as a country, have a mature political party culture on which we can run a parliamentary system.
Kenya needs not reinvent the wheel or play Russian roulette with its future. Available evidence in Africa is unequivocal on the desirability of the presidential structure of government. In emergent democracies, the electorate needs to exercise a direct franchise in choosing the head of state. The parliamentary system removes the direct choice of the head of state from the people and puts it in the hands of political party barons. This would retard democratization in Kenya and give too much power to political parties and individuals who are not ready to shoulder the national interest.
I suspect that the furor over the choice of the structure of government is a proxy, hidden fight over the creation of the post of a prime minister between NAK and LDP. Delegates should ignore both factions of Narc and do what is right and best for the country. I have written in this space before that there is no single good constitutional argument for the creation of the office of a prime minister. I want to reiterate that position.
But if delegates have to create the position of a prime minister, then they must make sure that it does not impose a parliamentary system on Kenya. If created, let such a post be clearly below the President, as in Tanzania or Uganda, and without the possibility or suggestion of provoking a catastrophic constitutional crisis in Kenya.
In sum, I urge delegates in the Committee on the Executive as well as the Plenary of Bomas, to opt for a presidential system of government. They must shear off the current dictatorial constitutional powers vested in the President by devolving - and sharing - them with the legislature and the judiciary. The parliamentary system will not cure the disease of executive despotism, and will surely create political instability, chaos, and even bloodshed. Let us reject it.
Makau Mutua is Professor of Law at the State University of New York at Buffalo and Chair of the Kenya Human Rights Commission.
Comments\Views about this article 
