Kenya: A Tale of Two Prime Ministers, One De Facto and One Ceremonial

Kenya's all-powerful opposition, embodied in ODM, fought spiritedly for the creation of the post of an Executive Prime Minister and a ceremonial President. Alas, what ODM ended up with in the Grand Coalition was the post of, to all intents and purposes, a ceremonial Prime Minister! How did that happen under our very noses, and how is the situation to be rectified within the strict confines of the democratic process?

In an interview with Edmund Sanders of the Los Angeles Times, which appeared on page 8 of Kenya's The Standard on Saturday of 10 January 2009, Raila Odinga made a stunning admission. He stated (indeed "argued") that Mr. Francis Muthaura, the Permanent Secretary in the Office of the President, is (as has always been the case) Kenya's de facto Prime Minister. He made this remark when asked about his relations with Mwai Kibaki, who even in the Grand Coalition government remains, constitutionally, the country's Executive President -- meaning that he is at once the head-of-state, the head of government and commander in chief of the armed forces. Here is the verbatim answer (I have highlighted the main point):

"It's fairly positive and cordial. We have weekly meetings in which we compare notes and agree on agendas. The problem really is with people you call the president's men, the powers behind the throne. They try to undermine. You find they try to frustrate implementation. There is an office in the civil service that used to be very powerful...permanent secretary of the office of the president. That was the [de facto] prime minister, but headed by a civil servant. He's still there."

He was then asked, "So you are competing with that office?" His answer put a spotlight on how Mr. Muthaura exercised his de facto (indeed constitutional) powers of "supervision and coordination". He worked (always in the name of the President) through the Permanent Secretaries, traditionally the accounting officers of their respective ministries. In this way, he technically bypassed ministers (through whom the Prime Minister was supposed to "supervise and coordinate") government ministries. Here's what Raila said (emphasis mine):

"He's still holding regular meetings with the permanent secretaries [of
government ministries] and giving them instructions. These president's men want to be like the prefect for the permanent secretaries who supervise the workings of the government, but that is now the function of the prime minister. Sometimes there is a conflict."

The question he was not asked is: does that conflict suggest unconstitutional conduct by Muthaure, or an unresolved "overlap" in the constitutional job descriptions of the Permanent Secretary and the Prime minister? To my mind, there is an ironic "overlap" which should have been sorted out constitutionally before the Grand Coalition agreement was signed last year.

Clearly, ODM was aware of the role that the said Permanent Secretary's office has played since Kenya became a republic. It was ODM's responsibility (and it was in its fundamental interest) to raise the red flag on this -- before the agreement was signed and the flawed duties of office assumed! I think the ODM side was naively satisfied with the (Prime Minister's) job title, forgetting that substantive power, in any corporate entity, lies in the job description. That is an elementary management fact. We should never find ourselves in a situation where two job descriptions are identical; but if we inadvertently do, the way to deal with it is to immediately eliminate one, or to rewrite its description.

Can the situation be reversed along the lines that Raila seems to suggest? That is, can the Prime Minister's job description be enlarged and enriched by stealthily "clawing power from the presidency" -- ostensibly through an "erosion" of day-to-day practice reinforced with well-timed voice (and threats of exit), all of which will make it unnecessary to go the more straightforward constitutional amendment way? Not quite; and even if it were possible, it would be unconstitutional -- and it would be dangerous. I think it is important to respect the rule of law. Law, which is surely an ass we must respect, has effectively given us two Prime Ministers for the value of one (and even one Prime Minister for the value of two), neither of whom is about to cede perfectly legitimate power to the other, simply on the other's muscular say so.

In the Sunday Nation of January 11, 2009 (p. 16), James Orengo claims that Mr. Muthaura is acting illegally. I think he is wrong on this one. Mutula Kilonzo, in the same issue, rejects the suggestion that the office of the Head of Public Service be abolished so that its functions may be performed by the PS in the PM's office -- that, certainly, would be a solution (but Kilonzo dismisses it as attempting a coup). Instead, he argues, "If ODM wants powers of the President, then let them bring a motion to amend the Constitution. There are no shortcuts."

It's not going to be easy to give Raila what Raila wants. So we are stuck with a tale of two Prime Ministers, one de facto and one ceremonial. Ceremonial in the sense that he is most publicly visible in the press conferences and "launching" ceremonies which the Ministers he supervises and coordinates are so clearly fond of. Ceremonial, too, in that, as Raila reckons, the real work he is supposed to do is substantively being done by another!