L’état c’est mo”. The state is me (or I am the state) – attributed, dubiously, to the French King Louis XIV. In Kenya sometimes (‘jokingly’?) “L’état c’est Moi” during the 24-year rule of Daniel Toroitich arap Moi as President of Kenya.
THE CONSTITUTION
Our Constitution does not say the President IS the state, but “The President …is a symbol of national unity” (Article 131).
You might think that symbols are usually things rather than people.
Indeed, the constitution lists the National Flag, the National Anthem, the Coat of Arms and the Public Seal as national symbols.
It was originally intended for a nonexecutive President – the sort of President in an essentially parliamentary system that was recommended by the CKRC and the Committee of Experts.
But, in early 2010, a parliamentary committee recommended changing to a presidential system inspired by the US Constitution with the President as both head of state and head of government.
The Committee of Experts felt unable to resist this. Most of the powers of the President in earlier constitution drafts remain with the President under the constitution as adopted including this ‘symbolic’ role.
There is no equivalent in the US or South African constitutions - in which, as here, there is no distinction between head of state and head of government.
I have a sense that leaving this ‘symbol’ provision in the constitution in a presidential system was perhaps an oversight.
Appropriate or not, it is there in the constitution and we, and the President, cannot ignore it.
SYMBOLS
Most symbols are inanimate – or at least non-human. The Coat of Arms and the Public Seal are particularly classic symbols. They are used only by the state (unless approved by the CS) and they mean “this is official”.
The flag may be flown on vehicles only if they carry certain state officers, or Kenyan ambassadors overseas.
If flown or waved or even worn by other people (not on a vehicle) it means something like “I am a patriot”.
The National Anthem is rather different because it has content which is supposed to inspire positive thoughts in singers and listeners. In fact, I think it is the most important national symbol to Kenyans generally.
As sung, at least outside official events, it tends to mean – this country is its people.
Turning to human symbols - it is right that a formal head of state be neutral without strong views on political matters especially.
The late British Queen was so careful to be neutral on everything that even admitting to emotion was forbidden, though she did become more human – but not openly opinionated – by the time she died.
But an executive President - elected on the basis of certain promises, or a certain philosophy - cannot be neutral.
This is where the problem comes about the ‘symbolic role’ of the President.
The constitution says the President IS a symbol, not SHALL BE.
However, I would argue that a human symbol could, by inappropriate behaviour, fail to be a symbol of what he or she is supposed to symbolise and would breach the constitution.
We saw failure in the case of the previous Deputy President Rigathi Gachagua, who often behaved as though he was the DP for the Kikuyus. Clearly, as President-in-waiting, the DP must observe this limit on behaviour.
PRESIDENTIAL ROLES
Our President has various types of roles according to the constitution Many involve real power – decisions that the President can make and to which he has personal, even if not the only - input.
Making certain appointments and signing laws are examples.
Then there are those that are formal – where it is appropriate that the President be involved, but not necessarily be the real decision maker. Signing letters of appointment, receiving foreign ambassadors and formally pardoning people convicted of crime are examples.
Our President has more of these formal powers than, for example, the US President.
Not a bad thing you might think, if you consider the way that Presidents Biden and Trump have used the power of “pardon”.
Our Presidents have not been happy with some of these formal powers – look at how President Uhuru refused to accept that he had no choice about the candidates for judgeships proposed by the JSC.
I would argue that in performing these formal roles, the President is definitely symbolic of the nation – and must be of the unity of that nation.
But I would also argue that even when exercising powers which involve actual decision-making, the President must always be aware of that symbolic role.
A third type of role is not specifically listed – you might call them the head of government roles.
These are not spelled out in the constitution.
They are the day-to-day governing decisions, but also the politicking: the juggling, the speechifying, the supporting or not supporting ideas and people. Some people will always be dissatisfied.
The problem facing the President is that to be an effective symbol you must always be the symbol.
This is why there is a problem about having Article 131(1)(e) still in the constitution.
Can the President ever not be President? His family life is private – provided it is private. But the President’s possibilities of non-presidential action are limited.
In the BBI case, the Supreme Court held that the President - unlike almost every other citizen - could not initiate a popular initiative to amend the constitution under Article 257.
He must be neutral and his only role would be to sign a bill to amend that emerged by the fully correct procedure - a formal (symbolic) role.
The President has unique immunity from the consequences of being a person in Kenya.
While in office, he cannot be prosecuted for any criminal offence – even if the alleged offence has nothing to do with his being President.
In this sense, he is never just a private person.
This sense is reinforced by the ‘symbol’ sub-clause. When visible a symbol can never not be the symbol.
GUIDANCE FROM THE CONSTITUTION
National unity is a theme in the constitution. It is in the Preamble, a national value in Article 10.
Various provisions make it clear what needs to be done to achieve national unity – recognising diversity, particularly through devolution.
And certain things are not to be done because they work against unity. These include basing political parties on ethnicity, region, religion or language.
Then there are the rights – to equality (including equal enjoyment of all rights), respect, dignity, to one’s culture and language, to political participation.
There is no shortage of guidance – if it were needed – as to what would be incompatible with being a symbol of national unity. And this is where I come to the issue that led me onto this path.
“There shall be no state religion.”
What does this mean? It does not, I suggest, simply prohibit formal law setting up a faith as the official state religion – like Israel, Saudi Arabia, the United Kingdom or Cambodia. US courts have held that “excessive entanglement” with religion can also violate their constitutional ban on an official religion.
I would suggest that regular presidential appearances in Christian churches is a violation of that clause and also means the state is not being appropriately symbolised by the President.
The President does not go to church as a simple citizen.
He goes as President and to serve political purposes. When he “to gives money to God” as he puts it, he is not talking of organised Islam, or Judaism or Sikhism, but a specific Christian church.
Even without the money, I suggest he is trying to forge too strong a link between the state and Christianity in a nation that, while its citizens are predominantly Christian, cannot be a Christian state. Money just compounds it.
