Impunity, graft have roots in the bad decision to retain a presidential system

Maina Kiai by Maina Kiai
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Turkey held presidential elections last week in which the incumbent President Recep Erdogan was declared duly elected, as expected. He had been Prime Minister under a parliamentary system from 2003 to 2014, before taking up the presidency which was then an elected but largely ceremonial and supposedly unifying and neutral position.

Upon election as president in 2014, Mr Erdogan began clamouring for more powers in the presidency, with limited accountabilities. 

He argued that a person directly elected by the people should be less hampered by checks and balances, have powers over the Judiciary, and should offer direction to the country, citing security concerns from terrorism and an apparent attempted coup.

Essentially, his argument was that the best way to protect Turkey, and enhance its development, was by having an Imperial Presidency—held by him.

A referendum was called in 2017 to make these changes, at a time when the country was under a state of emergency that gave enormous powers to the Executive and which had resulted in a culture of silence and fear. Despite this, the referendum was only narrowly approved and Turkey morphed into a presidential system.

Now, there are imperfections with both the presidential and parliamentary systems, but it is instructive that most dictatorships or autocracies are presidential systems or other form of exclusive executive power vesting in one person.

These could be absolute monarchies, such as Saudi Arabia and most Gulf States, or emperors like Jean Bedel Bokassa of the former Central African Empire.

It is also telling that after every military coup, the soldiers quickly adopt imperial presidencies and rule by decree. Of course there are presidential systems that have some checks and balances, such as the USA.

But even that system has serious weaknesses as the Trump regime is revealing. In fact it could be argued that America’s democracy thrives primarily because of its elaborate federal system which reduces power at the centre. But the ability and potential to create personality cults and accumulate power in the presidency should not be underestimated.

The US president has enormous powers to affect future generations through either Executive Orders, and by appointing Judges to the Supreme Court who can sit for life.  

Perhaps because of geography, almost all the countries in Latin America have copied the US presidential system in large measure.

And the results, as illustrated by history, have been less than flattering. For decades, Latin America was code for military coups—often engineered by the US—and a culture of autocracy, disregard for human rights, rampant corruption, and massive economic inequalities.

In Africa, most countries, including Kenya, shifted to presidential systems soon after independence, slavishly copying the governance system imposed by the colonial masters via their governors who were above the law, unchallengeable and absolute rulers in country.

The consequences have been atrocious as Africa leads the world in corruption, repression, conflicts and wars, poverty and indignity, combined with unacceptable economic inequalities. Sadly, Kenya is at the front of many of these negative indicators!

There is little doubt that had we better systems of checks and balances; did not see appointments to institutions and state bodies as rewards for political loyalty; and had we better ways to hold our leaders—whether duly elected or from stolen elections—accountable, we would be better off.

It really was a tragedy that parliamentarians meeting in Naivasha in early 2010 threw out our chance to try out a parliamentary system especially given the trauma and damage wrought by the Imperial Presidency.

The Committee of Experts proposal was imperfect to be sure, especially in providing for a parliamentary system but with a directly elected president. But that could have been easily remedied.

Perhaps it is time for us to think hard about changing from our existing presidential system, and merging a parliamentary system with a stronger devolved system.

The ongoing impunity manifested in rampant corruption and looting, the state of insecurity across many parts of Kenya, the sense of exclusion for the majority, the unacceptable economic inequalities including between regions and the dangerous intrigues of the politics of power and succession all have roots in the bad decision to retain a presidential system.

Yes, the presidency was diluted constitutionally but it retains some residual powers emanating from the fact that we have direct elections for the holder. In fact, the last eight years since the 2010 Constitution have proven the dangers of the presidential system.

Too many decisions, directives, policies and laws are made that contradict the Constitution—consequently thrusting Okiya Omtata into the limelight with his frequent court challenges—but it is fatiguing to always rush to court to force respect for constitutionalism.  

In fact, because parliamentary systems generally do not provide immunity to anyone, it could be argued that were we in a parliamentary system now, some very senior people would be in jail for consistently making unconstitutional decisions that effectively emasculate it.  
 

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