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A Case Against Tampering With Presidential Term Limits 

A Case Against Tampering With Presidential Term Limits 

The Constitution of Kenya 2010 provides any Kenyan with the right to propose its rehabilitation. This may be through a parliamentary or a Wanjiku-driven (popular) initiative. The Constitution, however, does not specify the period when or within which this may be done. The success of a proposed amendmendment therefore depends on the alignment of the issue, the solution it’s offering, its timing, and the route (parliamentary or Wanjiku-driven). Each proposed amendment is considered within the scope of the targeted constitutional provision, its suggested modification(s), the anticipated impact thereof, the zeitgeist (mood of the nation, is it a constitutional moment?), and the method of initiation. Who the protagonist(s) is or are is also elementary. 

If these factors match, such a proposal is likely to succeed. 

It therefore is within Salah Yakub’s right as a Kenyan and as a Member of Parliament to propose a constitutional amendment, of any kind. However, Yakub’s recent suggestion that presidential term limits be removed from the CoK, is both intriguing and worrying. It is perplexing because it seems like a ‘pop up’, considering recent political developments and context – that Yakub’s leader in the United Democratic Alliance (UDA), President William Ruto, was recently elected to the highest office in the land, signalling that a power-inspired inebriation may have kicked in early. More telling was the MP’s suggestion that age (below 75) should be the redline for one to run or not run for president, possibly aimed at Raila Odinga (77) and Kalonzo Musyoka (68), the incumbent’s strongest challengers come 2027, if they contest. If effected, age shall isolate the two. The proposal is therefore not far-fetched. 

Beyond the politics, limiting of presidential terms is a hallmark of Kenya’s democratic and constitutional growth, so that inasmuch as Kenya’s Supreme Court alienated the application of the Basic Structure Doctrine from Kenya’s constitutional discourse – an outcome of the Building Bridges Initiative (BBI) – the term-limit provision can be said to be cast in stone. Indicating this is that constitutionally, it can only be changed through a referendum (Article 255). 

This high threshold for amendment borrows heavily from history, since prescribing a shelf life for a president is phenomenal to Kenya’s second liberation. Thirty years ago in 1992, President Daniel arap Moi surrendered to demands for constitutional limitation. This victory cost many Kenyans limb and life. The term-limit device was a way of taming power, which as Kenyans had experienced, tends to bloat when in the hands of lingering presidents. At the time of enactment, Moi had ruled for fifteen years. His predecessor, Jomo Kenyatta, died in office after fifteen years of an intolerant administration. 

Through this change, Kenyans exorcised the ghost of ‘presidents for life’.

The limitation was therefore introduced, not out of theoretical comparison and imitation, but out of experience. It is out of appreciation of this history that eighteen years later in 2010, Kenyans retained the provision in the CoK 2010 (Article  142). It reads:  The President shall hold office for a term beginning on the date on which the President was sworn in, and ending when the person next elected President… is sworn in… and,  A person shall not hold office as President for more than two terms (my emphasis)The fact that it was this provision that eventually knocked out Moi and KANU (Kenya’s ruling party since 1963) is not lost to Kenyans. 

Moi, considered a dictator by many, was finally conquered through constitutional ingenuity. Additionally. and a welcomed surprise to many doubters, Moi obeyed the Constitution and handed over power. He did against the trend, where leaders either engineered reviews, primarily to expunge term limits (Museveni in Uganda in 2005), or caused civil strife by refusing to leave office after defeat (Ravalomanana of Madagascar in 2002, Laurent Gbagbo of Côte d’Ivoire in 2010, Yahya Jamme of The Gambia in 2016, and the list goes on…). 

On term limits, therefore, Moi set Kenya on a good trajectory. Mwai Kibaki followed suit in 2013, with Uhuru Kenyatta, to much acclaim, cementing the practice in 2022. 

But to know just how serious Kenyan were about the term-limit facility and its constitutionalizing, one has to look at Kenya’s second tier of government, the counties, where governors too aren’t permitted by law to be in office for more than two five year terms just like the President. This provision is so sacrosanct, seemingly, such that not even the powerful political partnership between former President Uhuru Kenyatta and former Prime Minister Raila Odinga dared touch it during the BBI process. 

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The current presidential term limit alteration proposal therefore smacks of a mockery of its normativity, Kenya’s constitutional and democratic history and development. Additionally, the proposal is insensitive because it was proffered and publicised during a period when millions of Kenyans are not only trying to recover from a bruising elections season, but are facing starvation due to famine. 

The timing is therefore off, philosophically and politically. 

Proposals should be welcomed because they offer opportunities for reflection, analysis, and debate. They should however be initially greeted and approached through the following arch –  “if it ain’t broke don’t fix it”, meaning that each proposal should address an issue that is palpably problematic, of which limits to presidential terms is not, is now cemented through practice, has worked well for Kenya and should therefore not be tampered with. This should be read alongside the warning from William Gaddis –  “power doesn’t corrupt people; people corrupt power”, in that power operates to the extent which citizens permit. Limiting the period of presidential service is prudential because it plays a huge role in taming the beast that is power. It does not target the office holder, but the office and its nature.

Author

  • Bobby Mkangi

    Bobby Mkangi served as a Commissioner in the nine-member Committee of Experts for Constitutional Review (CoE) in Kenya that delivered the Constitution of Kenya, 2010 (CoK-2010). In that process Mkangi convened and chaired the human rights, and civic education and public engagement sub-committees of the CoE. Thereafter, Mkangi worked on various transitional justice constitution-making processes in Tanzania, Zimbabwe, Sierra Leone, South Sudan and The Gambia. In 2012, Mkangi spoke at Tokyo’s Toyo University on Constitutions as Platforms of Change in Africa: The Kenyan Case, and is concluding a semi-autobiographical book, provisionally entitled It Was Written: Personal Reflections on Constitution Making Process in Kenya. A children rights advocate, Mkangi participated in an Experts’ Meeting convened by the Special Representative of the UN Secretary General on Violence against Children and the Office of the UN Commissioner on Human Rights (OCHR) on Legal Framework for the Prohibition, Elimination and Response to Violence against Children in Geneva, Switzerland in 2012. On the same issue, Mkangi has finalised two manuscripts provisionally titled The Legal Framework for Child Protection in Kenya and The Anatomy of Child Sexual Abuse: Kenya’s Silent Monster. Mkangi is affiliated to the African Network for Constitutional Lawyers (ANCL) and serve in various boards including the National Democratic Institute (NDI)/Kenya Board (Secretary), the Kampala based Eastern Africa Centre for Constitutional Development (Kituo Cha Katiba -KcK) in which he chairs the board, and Moyo Children’s Centre (MCC) where he sits as Chairperson. Mkangi previously served in the board of the African Network for Prevention and Protection Against Child Abuse and Neglect (ANPPCAN) – Kenya Chapter as Treasurer. In 2010, Mkangi was awarded the Member of the Order of the Burning Spear (MBS) by the President of The Republic of Kenya for exemplary service during Kenya’s constitution-making process. In similar context, Mkangi was awarded the Shujaa Wetu (our hero) Award by the National Council For Community Based Organisations. In 2004, he was awarded Honorary Membership (2004-2006) by the International Society for the Protection against Child Abuse and Neglect (ISPCAN). Mkangi works as an independent legal consultant, and lives in Nairobi, Kenya.

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