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Why
presidential powers need to be trimmed
DAILY NATION
Story by PETER KIMANI
Publication Date: 11/24/2005
The powers vested in the Executive
underpinned the bruising contest for the new Constitution.
This had elicited more heat during
the Moi era, with his many critics, among them President Kibaki,
claiming the retired President enjoyed too much power for
anybody's comfort.
Over time, some sycophants would
suggest it was not problematic for "a good President" to
wield excessive powers and that Kibaki, was such a President.
When the doors to State House swung
open to let in hordes of all manner of "interest"
groups, as the referendum campaigns intensified, many feared
"Mwai" was becoming "Moi."
For few knew President Kibaki's
magnanimity, the sort that retired President Moi personified. But
then, Mr Moi had gained notoriety for bending the law to
accommodate his excesses, and President Kibaki had established a
reputation as a stickler for the rule of law and careful spender.
Then something snapped and
President Kibaki was disregarding court orders to give out title
deeds to the landless Ogiek; the displaced in Mau Narok were being
resettled in forestlands, and the cash-strapped civil service
could suddenly afford pay rises for Provincial Administration.
Chiefs, who were technically out of
a job – since the Provincial Administration was to be scrapped
once the proposed Constitution came into effect – were assured
they would still have a job and more money went their way.
The State House visits, a tradition
that Mr Moi picked from the founding President Jomo Kenyatta, was
a first for President Kibaki, who seemed content to host
technocrats, not villagers on hired buses.
The argument that the rejected
draft would have placed more power in the future Presidents, is
debatable. But President Kibaki's actions pale in comparison with
Mr Moi's.
Mr Moi's decrees were many and
expensive: the construction of the bullet factory and airport in
Eldoret, and the purchase of a presidential jet – without
parliamentary approval – cost the tax-payers billions of
shillings.
Similarly, public properties like
the Kenyatta International Conference Centre simply reverted to
the ruling party, Kanu, while Agricultural Development Corporation
farms were dished out to cronies.
Even the education sector was not
spared. Mr Moi decreed that 85 per cent of A-Level students were
to be picked from their localities, a gesture that effectively
locked out deserving students from elsewhere.
Where presidential decrees could
not work, Mr Moi used Parliament to rubber-stamp a raft of
legislation that have resulted in the legal minefield the country
is walking today.
The repeal of Section 2 (a), which
transformed the country into a one-party state, was done through
the Amendment Act Number 7 of 1982. It took a decade and countless
lives to restore multi-partyism.
Further, Parliament, on Mr Moi's
order, reinstated the detention laws which had been suspended in
1978.
Colonial era laws, like the Chief's
Authority Act, the Public Order Act, the Preservation of Public
Security Act and the Penal Codes, gave the president the right to
suspend individual rights guaranteed by the constitution.
"For the first time in Kenya's
post independence history, the provincial administrators who are
civil servants, were directed by the Office of the President to
get involved in the internal affairs of Kanu," academics
Korwa Adar and Isaac Munyae wrote in a recent paper, Human
Rights Abuse in Kenya, 1978 - 2001.
"They were to review and clear
party meetings throughout the country and to isolate dissenters.
Kanu officials and members of Parliament henceforth were subjected
to these administrative procedures, undermining the meaning and
legitimacy of representation in Kenya's legislature."
Escaped scrutiny
The founding President, on the
other hand, somewhat escaped scrutiny by the time of his death in
August 1978.
But continued interrogation of his
legacy reveals a man whose word was law, and whose actions
frequently overstepped the limits of law.
Those roadside declarations that Mr
Moi perfected, originated with Kenyatta. Public land would be
dished out to individuals without question, and the on-going
struggles for land are traced to this period.
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