Raila allies call for shift to 'consensus democracy' sparks a political storm

The call for a national “conclave” and emerging agitation for a government based on consensus democracy has generated another round of controversy in political circles.

It has been likened to the broad-based government agreement between President William Ruto and ODM leader Raila Odinga, which critics argue is a violation of the Constitution.

Political pundits have described it as a slap in the face of the citizenry by politicians who, after finding their way into government, are now campaigning for dialogue for political expediency.

Early this week, two senior lawyers allied to the ODM party, Nyamira Senator Okong’o Omogeni and Paul Mwangi, made a curious proposal. They called for a change from the current popular democracy system of government to consensus democracy.

They argued that although the 2010 Constitution entrenched popular democracy, it has been repeatedly overthrown through post-election deals, to the extent that credible, free and fair elections that are periodically held in the country now count for nothing.

“Of late, what Kenyans voted for in 2010 has been overthrown by the agreement between Raila and Ruto through consensus democracy, where they talk and agree to jointly govern the country, and the same has been happening over the years,” said Omogeni.

He urged Kenyans to review the Constitution and enact a system similar to the one applied in Switzerland, where a rotational presidency by the seven Canton members takes place annually. In the arrangement, each region in the country would be part of the government on a rotational basis.

Mwangi, a close Raila ally, weighed in with a more controversial suggestion after claiming that Kenyans enacted a system of democracy that is not realistic, by aspiring to create a Western style of governance.

He says the reality of a “government of national unity” is here to stay, because it has been happening regularly after each presidential election since 2007.

“If we don’t find a way of factoring it in as part of our law, then we will keep flouting the Constitution. We will not have a stable government that is supported by a few communities, while other people are told, ‘go and wait for your time to come,’” said Mwangi.

Prof Gitile Naituli, the chairman of the newly launched Centre for Transformational Leadership (TCL), however, dismissed the argument as misplaced and ill-advised. He argues that the country is going through a leadership crisis and not a constitutional challenge.

From his analysis, the political class is flirting with constitutional change, by falsely seducing Kenyans with the promise of greater justice or representation, but in the garb of elite convenience.

“The latest calls by ODM leadership for a new constitutional dialogue, specifically to replace our liberal democratic system with what they’re calling ‘consensus democracy’, are not only ill-timed but also profoundly dangerous,” added Naituli.

He cautioned that Kenya is not suffering from a constitutional deficiency, because the 2010 Constitution remains one of the most progressive frameworks in the region, anchored on human rights, separation of powers, and the devolution of resources and power.

He further argued that the real problem with the Constitution is sabotage by the Executive and not its structure. Naituli said political actors, having failed to rise to the level of the law, now want to drag it down to their level.

“The renewed push for ‘broad-based power sharing’ is a red herring. It is not about unity. It is not about inclusion. It is a survival strategy born not out of conviction but out of fear,” says Naituli.

New animal

He thinks Kenya made a huge mistake by electing a class of leaders who lack not only the intellectual depth to appreciate the Constitution, but also the ethical commitment to defend it.

Naituli dismisses “consensus democracy” as a vague term that was never introduced to Kenyans during the constitution-making process by the Yash Pal Ghai-led Constitution of Kenya Review Commission (CKRC).

The so-called “consensus democracy” is a new political animal, that is undefined in Kenya’s legal or political tradition.

“What the ODM-UDA proponents seem to mean is a form of governance where power is not won through competition but shared through elite pacts. In short, it is rule by political accommodation, not popular mandate,” says Naituli.

He cautions that the dangers of such a model include killing the opposition, erasing the role of the citizen, and institutionalising impunity, thus divorcing power from the people’s vote and creating oligarchy instead of democracy.

Naituli further argues that popular democracy, as practised in the 2010 constitutional order, recognises and protects political pluralism, citizen sovereignty, the right to dissent, and the accountability of those in power.

“Elections are central to this model because they allow voters to reward or punish their leaders. But a class of political actors who no longer command public trust, and who have serious legal questions hanging over their heads, now want to replace this system with something they can control from boardrooms,” warns Naituli.

Political negotiations have, however, been used in the past for the good of the country, an example being the 2008 National Accord which created the government of national unity in negotiations midwifed by former UN Secretary-General Kofi Annan.

BBI debacle

Another attempt to justify a constitution overhaul in 2018 by then President Uhuru Kenyatta and Raila through the Building Bridges Initiative (BBI) collapsed after it was declared unconstitutional by the courts.

It also faced a spirited opposition from a section of the political class, led by then Deputy President Ruto.

A critical look at the suggestion made by lawyer Mwangi appears to suggest that a new set of laws should be introduced because elections no longer matter and that legitimacy can be forged in closed-door meetings rather than at the ballot box.

Prof Naituli describes the suggestion as reckless and deeply ironic, because the same leaders who built their careers shouting about democracy are now working to extinguish it. Raila was among the most vocal supporters of the 2010 Constitution.

He was among political leaders from various parties who met in Naivasha to agree on the final draft of the Constitution. It was at that meeting that they changed the format of government from a parliamentary to presidential system.

In 2023, again under Raila’s instigation, another attempt was made to change the Constitution through the National Dialogue Committee (NADCO) report produced by a team co-chaired by Wiper party leader Kalonzo Musyoka and Leader of Majority Kimani Ichung’wah.

Nothing much came out of that report, even after it was adopted by Parliament in February last year. It had been tabled on the floor of the House by Ichung’wah in December 2023.

Fair contest

The current broad-based government has received a lot of criticism from Kenyans, who argue that the government should instead focus on their well-being rather than on rewarding political opponents with positions.

Naituli questions why the proposed consensus is coming up now.

“Is it because they know they cannot win in 2027 in a fair contest because of the baggage they now carry, and so they now want to change the game?”

Naituli also cautions that once power is normalised without elections, then it will be held without accountability, and when accountability dies, so does the Republic.

“A country governed by individuals who are allergic to ideas, hostile to scrutiny, and oblivious to principle cannot prosper, regardless of the system it adopts. These are not reformers. They are escape artists, trying to flee the reality,” says Naituli.

Mwangi, however, insists that it is only through consensus democracy that complaints about appointments along ethnic lines that continue hurting citizens can come to an end.

“We are in a spiral where every group that comes in wants to undo the damage done by the previous government. Kenya is headed to a place where politics is becoming a question of perpetual rebalancing of ethnic equations,” he says.