Manufactured crisis: from separation to delegation of powers

The case of the marauding Executive and a whimpering Parliament

BY KEVIN MOTAROKI

In the seven years Jubilee has been in power, it is countable the number of times that Parliament has stood up to the Executive.
The two instances that quickly come to mind are the current standoff over the third basis of revenue sharing among counties, and secondly, in 2018 when Parliament rejected the Executive’s plan to implement a 16 per cent value added tax (VAT) on fuel.

But even the two instances have to be put in their proper context: The standoff over the new formula for sharing revenue has been exacerbated by the intra-Jubilee fights with those in President Uhuru Kenyatta’s camp supporting the Executive to ram through the formula while Deputy President William Ruto has been attracting those opposed to Executive-favoured formula.

On the 16 per cent VAT on fuel, after parliament rejected the proposal, President Kenyatta, reacting to public outcry, sent back the proposal to parliament with the implementation spread over time. Parliament eventually adopted the proposal.

Otherwise, Parliament under the Jubilee government has been a compliant institution, which has greatly contributed to the blurring of lines between the Executive and the Legislature.

The seven years of the Jubilee administration have seen the emasculation of parliament, including through the recent parliamentary leadership changes in Jubilee to remove Dr Ruto’s allies from positions of influence, including majority leadership positions in the Senate and the National Assembly.

Among those affected in the purge was former Leader of Majority in the Senate Kipchumba Murkomen, a sworn Ruto ally, who was replaced by West Pokot Senator Samuel Poghisio; and Leader of Majority in the National Assembly Aden Duale who was replaced by Amos Kimunya.

“An overbearing Executive that acts with impunity and disregards court orders and the rule of law has shown that a good constitution without being respected cannot transform governance and the economic and social conditions of our country,” religious leaders under the aegis of Dialogue Reference Group (DRG) said in a statement on the eve of the 10th anniversary of the 2010 Constitution.

The group added that both houses (Senate and National Assembly) have been reduced to mere rubber-stamps of the Executive.

That parliament has been compliant to the executive’s excessive demands can be demonstrated by how it was used to push through the controversial Security Laws (Amendment) Act, 2014 amid nationally televised chaos involving heckling and fistfights, as some members sought to air their strong opposition to the proposal.

The controversial law amended 21 different laws, including the Penal Code, Criminal Procedure Code, Evidence Act, Prevention of Terrorism Act, and the National Police Service Act. The courts would later declare significant parts of the law unconstitutional, an indictment of parliament that paid very little attention to the constitutionality of the law they were passing, and which was more interested in pleasing the President.

Following the September 1, 2017 Supreme Court ruling that nullified the presidential election, again acting at the behest of the Executive, Jubilee MPs rammed through parliament far-reaching amendments to election laws. Again, like with the Security Laws (Amendment) Act, 2014, the courts nullified the amendments.

The emasculation of parliament has become significant as the Executive seeks to roll back some gains in the constitution through ordinary legislation, and an assault on democracy through disregard of court orders, arbitrary orders such as the one directing that hiring of external lawyers by ministries and government agencies have to be approved by the Attorney General.

For instance, in 2015 Parliament muted itself in the recruitment of deputy Inspectors-General when it passed amendments to the National Police Service Act, 2011, where it allowed the President to appoint from names forwarded from NPSC with the candidates not required to undergo vetting. The amendments also did away with the two-third gender rule for the top three police positions. As such, currently, the holders of the offices of Inspector General and the two deputy Inspectors General are all male namely: Hillary Mutyambai, Noor Gabow, and Edward Mbugua. The Directorate of Criminal Investigations (DCI) is also headed by a man, George Kinoti.

Following the March 2018 ‘handshake’, the role of parliament in holding the Executive to account has further been eroded after opposition MPs were co-opted to the government side and effectively abdicated their role. Instead, the opposition has become the cheerleaders of the Executive and the president in his intra-party wrestling match with his deputy.

As MPs allied to Dr Ruto have been taking on President Uhuru Kenyatta, ODM MPs have assumed the role of defending the president from attacks by allies of the Deputy President.

In another clear indication of the Executive recentralising power, in the Public Audit Act Parliament opened the doors for the government to manipulate audit reports and weaken the independence of the office of the Auditor General by granting power to the Public Service Commission (PSC) to hire, recall and fire officers in the National Audit Office at will. The Office of the Auditor General is an independent office which audits a PSC that currently has power over the former’s staff.

There was also an attempt to amend the Judicial Service Act, which, without the courts’ intervention would have given the President a bigger say in the appointment of the Chief Justice and Deputy Chief Justice by requiring that the Judicial Service Commission (JSC) forwards to the President three names for each position so as to give him the latitude to appoint a person of his choice.

In other instances, the Executive has used its stranglehold on the budget to beat constitutional commissions and independent offices to shape. But it seems the preferred way to emasculate the constitutional commissions and independent offices have come through the appointment of compliant commissioners, mostly losers in previous elections.

At the Commission on administrative Justice (Ombudsman) for instance, Florence Kajuju was appointed the chairperson after losing the Meru County Woman Representative seat in the 2017 elections. Priscilla Nyokabi Kanyua is now a commissioner at the National Gender and Equality Commission (NGEC) after she lost in the Jubilee nominations in 2017. There is also former cabinet secretary Kazungu Kambi who is now a commissioner with the National Land Commission (NLC), and Eliud Kinuthia who lost in the Jubilee nominations for governor of Lamu and who is the current chairman of the National Police Service Commission.
The same is true for the Judicial Service Commission (JSC) where allies of the president occupy a number of positions.

As well, at the judiciary, all available tools have been deployed to control the courts: threats to life and names of judges being dragged through the mud, lower-than-expected budget allocations, disobedience of court orders by the Executive, refusal to appoint judges recommended by the JSC, and the attempt to amend the Judicial Service Act to give the President more than just a ceremonial role in the appointment of the chief justice and the deputy chief justice.