The draft constitution errors when it proposes that the prime minister should be the leader of the largest party in parliament. This proposal places enormous powers on parliament, which in the last few years has shown that like the president, it is also capable of abusing its powers. The leader of the largest political party in parliament might not necessarily enjoy widespread support across the country. Given the nature of Kenya’s politics, the leader of the largest party in parliament might be a polarizing or corrupt person who has used ill-gotten resources to buy support from MPs. Even worse, Kenya’s constituencies do not reflect the principle of proportionate representation, therefore the prime minister appointed in such a manner does not reflect the will of the majority Kenyans. Considering Kenya’s history of ethnicity and violence, such a scenario is dangerous. To guard against this, neither the president nor the parliament should appoint the prime minister. This should be the people’s responsibility.

The constitution should clearly spell out that the holders of the offices of the president, the vice president, the prime minister and members of parliament should derive their legitimacy and mandate from the people and should therefore be subject to an election. During the elections, the political parties should not only nominate presidential and parliamentary candidates but also the prime minister and vice presidential candidates. The presidential, prime minister and vice presidential nominees of each party should run on a single ticket, articulating their party’s political ideals, with the presidential candidate as the flag bearer of the team. The prime minister unlike the president, however, should be a member of parliament and in scenarios where the winning party prime ministerial nominee fails to win the parliamentary position the party should have powers to appoint another person into the position. This way the prime minister just like the president and the vice president will have popular mandate to hold their positions. Once elected the president will be the head of state while the prime minister will be the head of government. 

This brings me to the second point of contention, that of the appointment of ministers. Although the prime minister will serve as the head of government, he should not have absolute powers in the appointment of ministers. The CoE recommendation about limiting the number of ministers to twenty and appointing half of them from outside parliament is a good innovation. This innovation, however, needs further modification by granting the president some powers to appoint a limited number of ministers with the approval from the parliament. The ministers appointed by the president should not be members of parliament but will be answerable to the prime minister and the parliament. The president should appoint not more than six ministers in ministries that oversee sensitive national security matters and those that deal with weighty economic policy and national development. These ministries that include defense and internal security, finance, infrastructural development, health, education, and trade and commerce should be headed by qualified experts and should be divorced from the everyday parochial politics associated with politicians. On the other hand, parliament should have the power to fire these ministers if need arises. The prime minister with approval from the parliament and the president should appoint the other ministers. 

Over the years Kenyan MPs have exhibited extreme arrogance and contempt for the views of ordinary Kenyans by awarding themselves ludicrous salary increments. The salaries of MPs and senators should henceforth be pegged to the economic performance of the country. While the holders of these offices should be well remunerated, their salaries have to be reasonably well within the range of other professionals. These representatives should therefore not earn a combined salary and allowances of more than 200 times the gross national income per capita. In addition, all salary increases should apply to the next parliament. The MPs should be paid pension once they retire.

Finally, the CoE recommendation that the constitution create three levels of government is unnecessary. Experts will agree that Kenya cannot afford this expensive luxury. Instead, Kenya needs only two levels of government, one at the county and another at the national level. Regions are not only expensive but also encourage provincialism and tribalism because they are following the pattern of the colonial provincial administration that balkanized the country tribally. Creation of regions in place of provinces is superfluous since the draft constitution recommends devolution of government services to the county level. 

In conclusion, the constitution as a contract between the governing and the governed should ensure proper checks and balances to guard against any abuses or misuse of power. A good constitution is one that guarantees individual liberties and property rights while serving as a basis for national unity. As a supreme document, the new constitution should stand the test of time and protect the rights of all individuals and groups to exist without facing persecution because of religion, ethnic, gender, sexual orientation or any other reason. Everyone should feel safe and protected by our constitution.

Michael Mwenda Kithinji, Ph.D. is an assistant Professor of History at the University of Arkansas in Fort Smith.