What happens when the Executive, Judiciary, Parliament are in bed together

Why Kenyans who value constitutional democracy have no reason to hold their breath.

By Shadrack Muyesu

The late justice Antonin Scalia often reminded his audiences that the actual and deliberate separation of powers implicit in its constitutional design made the United States of America the greatest country on earth. As he would often say, it is not enough to have a liberal democratic constitution; after all, many failed states do. Neither is it enough to have a Bill of Rights. Apart from the aggregate happiness of its citizens, the hallmark of a proper democracy is the functional health of its institutions and the ease with which they interact.

True as it may be, incidental to Scalia’s assessment is the naive assumption that constitutions can thrive without the goodwill of its functionaries. The Kenyan experience is a perfect example that they cannot. Like its American counterpart, the Constitution of Kenya, 2010 is liberal democratic in nature, envisaging a separation of powers complete with a detailed Bill of Rights. By all measures, it is an immaculate constitution, yet that has yet to translate to good governance. There may have been a marked development in our systems, but if the expectation was that the culture of impunity would immediately end, then how wrong we have been!

The role of parliament

The recently concluded vetting process for Cabinet Secretary Nominees is a perfect example of just how far away we remain from the constitutional ideal. One must understand the role of parliament within our constitutional setup to appreciate the magnitude of the problem. Parliament is the second and arguably most powerful arm of government, constituting the voice of the people (in all things, therefore, parliamentarians must be keen to ensure that they only represent their wishes). From this basic understanding, it is easy to see why some would be convinced that the National Assembly did a great job, being that, if the outcome of the just-concluded general election is anything to go by, there is a general acceptance of the Hustler agenda and all those who represent it. In other words, if the people want President Ruto, they must also want his men – and the purpose of the vetting process is to ensure that. 

But even where it would be argued that the duty of parliament is to execute the wishes of the people, we must agree on who this majority is. Of the 22,120,458 registered voters, only 7,176,141 voted for the current president and his agenda. That is hardly a majority. The national assembly was, therefore, not exercising the will of the majority when it ratified all the CS appointments. Unfortunately, the role of parliament is much more compelling.

Representative democracy appreciates the impossibility of all citizens being directly involved in the affairs of the large modern state and, as such, allows them to participate through their chosen representatives. The intense competition in the system means that only the high-value men (by society’s standards) ascend to leadership. With their unique qualification as being beyond the ordinary man they represent, it is, therefore, incumbent upon these Honorables to demonstrate good judgment in discharging their obligations. Like any professional, their duty is not simply to execute their principal’s wishes but to listen, interpret and consequently discover his actual problem and, thereafter, prescribe the best solutions. Ultimately, all the people are interested in is good governance, and the onus is upon their elected representatives to deliver that. Surely this would mean going beyond simply rubber-stamping the executive’s wishes.

When parliament fails

One of the most important roles of parliament is to approve the budget and supervise government expenditure. Every financial year, budgetary proposals are tabled before parliament, where they are debated, and a choice is made to adopt or reject them per Section 40 of the Public Finance Management Act. All collected monies are then paid into the consolidated fund from where they are appropriated per the budget. And although the specific contracts that government entities enter into thereafter are not subject to its approval, parliament, through the Public Accounts Committee, has to examine all accounts and scrutinize the financial expenditure to ensure transparency and accountability within government. In so doing, it has powers to, inter alia, summon and question responsibility holders and make recommendations.

Of late, our policies have been bad. Large infrastructure spending with little to no economic return in the immediate term (at the expense of agriculture and tourism) was a mistake. Yet parliament watched and did nothing.

Author

The last few years have seen a rise in the cost of living due to an exponential increase in our budget alongside a corresponding increase in our debt obligations. And while many blame this on infrastructure spending, it is now emerging that the money borrowed was neither deposited into the consolidated fund nor spent appropriately under the law- in other words, the money is lost. It’s quite astonishing that this could happen when we have a parliament. 

Suffice it to note that policy and policy formulation are no longer theoretical propositions devoid of legal consequences. Once the cabinet approves, a policy has to be ratified by parliament, where laws are made and money allocated towards implementation. The purpose of the budget is, therefore, to finance government policy and parliament occupies a central role in the whole operation.

Of late, our policies have been bad, and the enabling laws dubious even as money is lost under the lethargic gaze of a complicit parliament. In hindsight, large infrastructure spending with little to no economic return in the immediate term (at the expense of agriculture and tourism) was a mistake. Yet parliament watched and did nothing. Parliament then went on to feed the executive’s appetite for debt by sanctioning more borrowing. And when all this was done, parliament stood by as the borrowed monies were misappropriated or lost altogether. The irony in all this is that the custodians of the budget now join citizens in criticizing the executive for the rise in the cost of living. 

Meritocracy

The new government must be commended for identifying these gaps and promising to put things in order. The noise coming from State House is largely positive. For the first time in a long while, we have a government paying attention to agriculture and tourism and placing them at the center of its economic policy. The government also appears determined to move away from debt as the primary source of budget financing, not to mention making a concerted effort to convert the country into a modern capitalist economy where the laws of demand and supply determine prices as opposed to government fiat. Most surprisingly, considering its previous troubled relationship with law enforcement, has been the positive attitude towards the Judiciary. Many may not agree, but all things taken into perspective, we have a reason to be cautiously optimistic.

I have always cherished the absence of an ideological foundation to our party politics because, in my view, it promotes independent thinking while also allowing us to be flexible in our decision-making (although many praise it, there is something contemptible about the western model where people have fixed minds on everything). Yet even I have to accept that this lack of ideology is to blame for the lack of sophistication in our politics.

Author

Be that as it may, while the intention is good, it is nothing without statecraft. The people President Ruto chooses to man institutions must be qualified enough to deliver on his agenda, and parliament has a constitutional obligation to guarantee that. It was, therefore, quite alarming when the government-dominated parliament accepted the nomination of Peninah Malonza, a palpably uninterested novice, as the CS for the crucial Tourism docket. But she’s not alone; a large portion of the nominees are either dubious fellows or intellectually limited: we hope for the best, but it isn’t easy to see what value they would add to Ruto’s government. Perhaps the president sees something in Peninah et al. that we don’t, but I suspect parliament has messed up as usual. 

I have always cherished the absence of an ideological foundation to our party politics because, in my view, it promotes independent thinking while also allowing us to be flexible in our decision-making (although many praise it, there is something contemptible about the western model where people have fixed minds on everything). Yet even I have to accept that this lack of ideology is to blame for the lack of sophistication in our politics. Ideology allows the opposition to effectively check on the government, if not for anything, then out of spite. Where parties live by a code, there is little chance that the minority will join hands with the majority on important issues of national interest unless their ideologies align. At the very least, one can expect a fierce debate, and even if a motion is lost amidst the chaos, the truth is revealed for all to see. This is what Scalia meant by true separation of powers.