“I need to retire from retirement.” Sandra Day O’Connor

A rather intriguing provision in Kenya’s Presidential Retirement Benefits Act 2003 provides that “A retired President shall not hold office in any political party for more than six months after ceasing to hold office as President.”  This legislation was enacted in 2003, in order to address what was at that time a new phenomenon in Kenya – that of the institution of a former president. With tax-payers footing the bill, the law provided for the pension, gratuity, allowances, and other services including security, that former presidents would henceforth enjoy while in retirement. Upon retiring in 2002, the late President Daniel Arap Moi, who had led Kenya since 1978 after taking over from Jomo Kenyatta – who died in office – would therefore become the inaugural personification of the new title and role of a retired president. Since then, this insignia has been worn by Mwai Kibaki (2013) and Uhuru Kenyatta (2022).

Considering that the specific provisions of the Act that apply to a former president (some apply to the spouse and children), became momentarily redundant after the deaths of Moi and Kibaki, the legislation, and more so the provision mentioned earlier, have in the recent past become of interest. This is because the country now has a new retired president in the person of Uhuru Kenyatta, and unlike Kibaki who chose a taciturn retirement, Uhuru Kenyatta has to certain extent continued to lend his presence in the country’s political ecosystem. 

Though somewhat subdued, Kenyatta has kept signalling his intentions of remaining politically active. He has not resigned, as required by law, from his leadership roles in both Jubilee Party and the Azimio La Kenya-One Kenya Coalition Party. Additionally, his rhetoric and conduct indicate that he still wants in. 

Several incidents attest to this. 

On diverse dates in December 2022, various media outlets reported that Kenyatta would resign as the chairperson of  Azimio, so that he could concentrate on his regional peace-seeking duties. This seemed plausible not only because of the statutory obligation noted above, but because during his inauguration, President William Ruto announced his and the Kenyan government’s support towards Kenyatta’s chairing of peace talks in the Great Lakes and Horn of Africa. This communicated the state’s intention of working closely with Kenyatta, hence requiring him to rise above factional politics and graduate into the stature of  an ‘elder statesman’. 

Four months later, this had not come into fruition, with indication that the status quo would hold when on 6 April 2022, the retired president sent his apologies for missing Azimio’s  Parliamentary Group’s meeting held at Stoni Athi in Machakos County. When conveying Kenyatta’s regrets, Azimio’s Raila Odinga referred to him as “Chairman Uhuru Kenyatta…” indicating that as of then, Kenyatta had not resigned as the Coalition’s Council’s chairperson. Additionally, and as recently as 27 April 2023, Kenyatta stormed into the headquarters of Jubilee Party, of which he remains leader, in a quest to help quash disputes concerning the party’s secretary-generalship. 

It goes without saying that Kenyatta’s continued holding of these positions cannot be an oversight because according to local newspaper reports, Treasury confirmed that the former President had applied for his retirement benefits, of which payments thereof commenced in December 2022, a short period after his retirement, on 13 September 2022. 

Additionally, while addressing roadside crowds in Vihiga and Kisumu on 23 February 2022 in the company of Raila Odinga shortly after the funeral of former Cabinet Secretary Prof George Magoha, the former president sent somewhat mixed signal about his future political plans by insinuating his intention to linger, albeit passively. 

“Kustaafu sio kuchoka,” he said. “Hata kama nimeacha siasa active…” 

Retired does not mean tired. Even if I have left active politics…

It is difficult to discern how a retired president like Uhuru Kenyatta, who has never categorically declared his retirement, can be ‘passively’ involved in politics, a sphere in which one is either in or out. 

One wonders, why has Kenyatta chosen to offend the law, and what happens next? 

Section 4(1)  of the same Act provides that the National Assembly may through a motion endorsed by at least two thirds of its membership resolve to halt or vary a former president’s retirement package on the basis that the former head of state continues to hold office in or is actively involved in the activities of a political party(ies). 

As it stands, Uhuru Kenyatta is in violation of the Act, and can only be reprimanded by the National Assembly. 

In addition to this, the Constitution which was promulgated seven years after the Act and is superior to it provides in Article 151 (3) that “The retirement benefits payable to a former President and a former Deputy President, the facilities available to and the privileges enjoyed by them, shall not be varied to their disadvantage during their lifetime.” Considering that Kenyatta has already started receiving his benefits under the prevailing terms, can the National Assembly vary these? Is this a law that invites Parliament to subvert the Constitution? More pressing, however, is whether limiting the political activities of a retired president and pegging the same to his or her retirement benefits is reasonable. What mischief does this address? 

History, perhaps, explains it. 

At the time of the law’s conception in early 2003, the National Rainbow Coalition (NARC) had just taken over government from President Moi and the Kenya African National Union (KANU), of which he had remained chairman since 1978. Inasmuch as Moi’s retirement was triggered by the constitutional change of 1992, which set term limits (maximum of two five years terms) but presented a tabula rasa to Moi’s previous 14 years as president, allowing him a fresh start of sorts, a section of Kenyans, especially those who opposed him, remained apprehensive that Moi would not retire and hand over power, especially to the opposition. 

Moi’s hold on power for over two decades fashioned and placed him in the club of archetypal African Big Men of whom only death and the gun could separate from power. As at that time, only a handful of African presidents had voluntarily retired or relinquished power. These were the likes of Leopold Senghor of Senegal (1981), Ahmadou Ahidjo of Cameroun (1982), Julius Nyerere of Tanzania and Siaka Stevens of Liberia (both in 1985), and Kenneth Kaunda (KK) and Mathieu Kérékou of Benin, both of whom handed over power after losing to the opposition. 

In addition to this African rarity at the time, Moi’s style of wielding power, which eventually profiled him a dictator, was light years apart from the idea that he would relinquish power, and if he did, it would only be symbolic at best. To achieve this, sceptics held, Moi would have to either abrogate the Constitution and turn Kenya into an outright dictatorship (most extreme), or anoint a successor who he could control, or like Julius Nyerere, resign the state presidency but remain the chairperson of the powerful ruling party. 

Moi chose the last two; he tapped Uhuru Kenyatta as his protégé and like Nyerere did with Chama Cha Mapinduzi (CCM) in Tanzania, remained the chairman of KANU.  This meant that contrary to the desire of the opposition and many Kenyans that Moi fades into the silence of oblivion, the self-styled Professor of Politics intended to still feature in Kenya’s politics. The only way of frustrating Moi’s plans, therefore, was to defeat his chosen successor and KANU. NARC managed to do this, but only just. 

During the preceding decade, events in Zambia, where another former African Big Man retired President Kenneth Kaunda had eventually become a thorn in the flesh of President Fredrick Chiluba’s government may have inspired how Kenya’s new NARC government chose to deal with Moi. 

Due to his political activism, which was interpreted as an attempt to undermine Chiluba, Kaunda got himself arrested and stripped of his citizenship, which prevented him from running for president, during the country’s 1996 elections. Unlike Leopold Senghor and Julius Nyerere, however retired, Kaunda was not tired of local politics. 

Kaunda therefore became a sign of the ‘menace’ that former African presidents could become if left to be, especially after handing over power to the opposition. 

Inasmuch as the circumstances were different in Kenya, in that Moi was constitutionally barred from ever running again as president and that his threat was not about his return as Candidate Moi, his succession plan and retention of the chairmanship of KANU, signalling his desire to prevail, did not augur well with the opposition and civil society. As later told by Kiraitu Murungi, who served as NARC’s inaugural Minister for Justice and Constitutional Affairs, there were many (especially in opposition, civil society, citizens), who wished for Moi’s arrest and prosecution for human rights abuses and corruption. It was therefore like a dare to them, that during the early months of 2003 when NARC was just settling in, the official opposition KANU, now led by Moi, was already calling out NARC’s perceived misdeeds. To them, this felt like the case of the pot calling a new kettle black. For all intents and purposes, Moi and KANU were supposed to keep mum and as Kiraitu Murungi said at that time, “go home and watch how governments are run.” 

So it was in a bid to send Moi home for good that the Presidential Retirements Act 2003 was framed with the provision that a retired president must forfeit leadership in a political party, and refrain from active politics, or else his or her retirement package would be subject to the National Assembly’s razor. 

Apart from incentivising a retired president to depart from active politics and instead become an elder statesperson and advisor, this law, whose discourse commenced prior to and because of Moi’s impending retirement (when some argued that African Presidents cling to power because their futures after retirement were not secured (stature, lifestyle), and therefore the need for an appropriate retirement package) was also meant to deal with this. 

This is in fact one of the reasons for the establishment by Mo Ibrahim of the Ibrahim Prize for Achievement in African Leadership Award. Amongst the selection criteria is that a recipient must have “served his/her constitutionally mandated term”. 

Beyond the incentives, as of right and from an employment and labour perspective, at the time of writing the law, affording retirement benefits to former presidents was and remains a globally accepted good practice. Tanzania already had one titled the Political Service Retirement Benefits Act 1999, and so did the United States with its Former Presidents Act. However there were those at the time who argued that Moi and other African presidents did not deserve any retirement benefits because most had corruptly enriched themselves during their tenures. 

Appreciating that this law was enacted in order to both fix and silence Moi, it is a wonder that when it was amended in 2013, at the time of President Kibaki’s retirement, this provision was sustained. 

This is intriguing because the review was done three years into the implementation of the then new Constitution. 

In addition to the trite civil rights of expression, movement, and association, which though not as well secured as in the 2010 Constitution existed in the repealed one, political rights (Article 38) were now categorically entrenched in the Constitution. Amongst other elements, this right guarantees every Kenyan the entitlement of joining, forming, supporting, or participating in the activities of any political party of his or her choice. 

In particular, it states that “Every citizen is free to make political choices, which includes the right—(a) to form, or participate in forming, a political party; (b) to participate in the activities of, or recruit members for, a political party; or (c) to campaign for a political party or cause.” 

With this in mind, the question lingers, why should retired Kenyan presidents, who remain citizens of Kenya, denied this right whereas their retirement benefits emanate from their service as holders of the office of the president and not from mere politics? 

Perhaps this is the dilemma that Uhuru Kenyatta is trying to resolve – is it him who is breaking the law or is it the law that is breaking him and the Constitution? After all, in other countries, retired presidents are provided retirement benefits but still allowed to actively participate in active politics. Inasmuch as Kenyatta should follow the law as currently stands, Parliament should also rethink this ‘Moi Retirement Provision’.

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.