President has leeway to do much more to stem graft than he lets on

By Kelly Malenya

“It is my duty to see the Laws executed; to permit them to be trampled upon with impunity would be repugnant to it” – The first President of the United States of America, George Washington in a letter to Alexander Hamilton in September 7, 1792

At the level of abstraction, the President of the Republic of Kenya H.E. Uhuru Kenyatta is, in a manner of speaking, the most powerful state officer in the Republic of Kenya. One may actually be excused if they were to observe that he is the most powerful person in the state of Kenya. This is primarily because he exercises executive power, and also controls the state’s tools of control and coercion.

Whereas this (powerfulness) may not be entirely true and is subject to a separate analysis, he is the one person that has the authority to speak on behalf of the majority who voted for him. This observation then begs the question, why would such a “powerful” authority seem helpless when addressing the topic of corruption. In the recent past, the President and his lieutenants have developed a chorus whenever the question of corruption springs up.

They have constantly indicated that, on his part, the president has done what he can, that the rest is for the courts; that it is the office of the Director of Public Prosecutions… it is the Ethics and Anti Corruption Commission, etc. Such responses are not convincing and are indicative of an office that is keen to shift blame, or that misunderstands what exactly constitutes executive power. Maybe they are wrong, maybe they are right. Let us peel this fruit.

In March 2013, the President was elected by over 6 million voters – well over 50 per cent of the total registered voters then – who formed part of the 40 million plus population in Kenya. Voting is one of the ways in which “the people” of Kenya exercise their sovereignty.

This sovereignty as provided for in Article 1 belongs to the “people of Kenya” and they exercise this sovereignty directly or indirectly through their elected representatives.

Therefore, the President is one of those elected representative who has the biggest constituent and is elected by a majority of the voters. A Constitutional scholar, Duncan Okubasu, rightly observes that it’s not all the people that vote for him because some never vote, some vote for other candidates and some are not allowed to vote. That is, however, how a democracy functions and upon attaining the majority votes and the legally required votes, Uhuru Kenyatta became President and would automatically extract allegiance from all who voted for him and those that did not.

What then is executive power?

Simply put, it is the power to execute the laws of the land.  In most democracies, the power to execute laws is vested in the President. Saikrashna Prakash in “The essential meaning of executive power” opines that the President himself is regarded as the executive. The President executes the law and has the authority to control other government officers who execute the law.  It may be important at this juncture to try and understand what various legal and scholars of political philosophy have postulated.

According to John Locke in his seminal piece “The Second Treatise of Government”, where men live in a state of nature, the laws of nature are observed and enforced by everyone. The execution of this law, according to Locke, “is put in every man’s hand where everyone has a right to punish the transgressors of that law to such a degree as may stop its violation”. When men come together to form this abstract entity we call government, man then cedes this “executive power” to government to secure a more regularised, convenient and consistent execution of laws.  Locke describes this power as “a power always in being”.

Whereas in Locke’s postulation the executive and the judiciary were one and the same, other theorists such as Baron De Montesquieu bring out the separation between the executive and the judiciary with cogent reasons. That is not, however, of concern to this piece. Adams Smith in the “Wealth of Nations” indicates the executive as the executive power that commanded the force of the nation, received complaints about injuries and redressed wrongs done to the weak.

Saikrashna, while dissecting executive power, brings out the various conceptions of the executive. In what is described as the chief overseer thesis which addresses the President’s relationship to law execution, the President is “permitted to influence and monitor all federal law execution”. There is, however, a rider here that he has no authority to execute all laws himself or power to direct the law execution of other federal institution. Saikrashna is concerned about the American conceptualisation of executive power; this, however, also makes sense even in our situation, first because it is not logically possible that the President would execute all laws by himself. He has to be assisted by persons who are subordinate to him. “Subordinate” is used here deliberately because he appoints those persons, he has a role in their appointment and/or most importantly he is accountable to all the People of Kenya by virtue of our Constitution. This means that whereas all other state officers are recruited, selected and appointed by specific bodies, the President is elected by a greater majority. He enjoys the legitimacy and so to speak he has the voice of the masses.

Secondly Kenya, being a democratic State, operates on what we refer in democracy to as “limits”. The President, any other person, authority and organ can only execute laws to the extent permissible by the Constitution. Even so, in the chief overseer thesis, all eyes are on the President because he can be held accountable, and he can act quickly and energetically. In the United States, for example, the President is permitted in times of an emergency to act by issuing executive orders when it would take long to get the approval of congress.

Similar to upholding and defending the Constitution when executing law, the President has to ensure that other independent agencies/bodies that execute laws execute the same faithfully and with fidelity to the Constitution. In America, there is a specific “faithful execution” clause. It is not in contention that other laws have to be executed by other bodies. In Kenya, the Constitution has established other bodies to also execute laws, but the President cannot lose the power to be in charge. Saikrashna notes that the faithful execution clause vests the President with authority to take action “such as removal in the event he finds that an officer’s law execution has been faithless”. He (the president), according to Saikrashna, doesn’t have to make judgment if the law has been faithfully executed or not; he must affirmatively ensure that the law has been executed faithfully. In other words, he has to intervene in cases of malfeasance.

By virtue of Article 131 of the Constitution of Kenya, the President exercises executive authority with assistance of the deputy and cabinet secretaries. The same article also provides that he shall, among others, respect, uphold and safeguard the Constitution. He is also to ensure the protection of human rights, fundamental freedoms and the rule of law.

This authority in itself indicates that that the President has to act when other state officers violate the Constitution. How, for instance, is he to ensure that human rights and the rule of law are observed specifically by persons appointed under the Constitution to serve the state of Kenya?

Corruption is one of the major crises we face as a nation even from the own admission of the President himself, the chief justice and other leaders. In the State of Nation address last year, the President took a step where he named and asked members of his cabinet and principal secretaries to step aside to allow legal processes to determine whether they were culpable of corruption or not. It was a good step and whether perceived as right or wrong, he acted – right because he took a step and wrong because at this stage, these were mere allegations, some of which could not be and have not been proved in court.

It also only focused on members of his cabinet whereas there is a barrage of allegations against many other state officers and institutions some of which are charged with the responsibility to investigate, prosecute and adjudicate. The question is, was he to stop there? The President claims other institutions bear the responsibility of dealing further, such that once he gave the names, his job ended there. Can he blame the Judiciary, for example? Not really because the Judiciary determines cases that are brought before it in accordance with the weight of evidence provided and the existing laws.

The Judiciary cannot convict if the investigations done were shoddy, which would automatically influence the quality of evidence. The President cannot control all other institutions but he can, in good faith, seek to ensure that the institutions that investigate corruption do so efficiently because they form part of the executive. He controls and chairs the National Security Council (Art 240) where the Inspector-General of police and the Director-General of the Intelligence service sit. The council exercises supervisory control over national security organs (Article 240(3)) and its role under Article 238 is the protection against internal and external threats to Kenya territorial integrity and its people, their rights, freedoms, prosperity and other national interests. As is obvious, corruption squarely falls under the contemplated threats. At this level, if the council is to address corruption as a security threat – which it clearly is – the Inspector-General would be answerable as to the quality of investigations that are being conducted under him as the head of the police service. The council can then take appropriate action in light of the role of other independent bodies such as the EACC.

Even with regard to independent bodies, he can still ensure that they discharge their functions faithfully and with fidelity to the Constitution. His office participates at some point in the recruitment and appointment of these officers of the state and he also takes part in their removal. The DPP, for example, is appointed by the president and he can be removed from office for, among other grounds, incompetence. Anyone can petition the Public Service Commission and, if there are grounds, the same forwarded to the President to constitute a tribunal. He can thereafter suspend the DPP and follow the recommendations of the tribunal. It is noted that first the President has a hand in “appointments” and “removals”. The Constitution provides that any person can make the complaint, and nothing stops the president himself or his officers from being the complainants in case an officer executes his or her duties without fidelity to the Constitution. For the EACC, for example, he has a hand in the selection of the chairperson and members after recruitment by the selection panel. The commissioners can be removed for any of the grounds under Article 251, such as violating the Constitution.

It is actually true that the President cannot control the courts but he can seek to have meaningful and progressive engagements with the Chief Justice as the head of the Judiciary for the common goal of ensuring that the Constitution is upheld and defended. This is in the spirit of inter-dependence of the arms of government. If judicial officers are accused of graft which, as a consequence, affects the delivery of justice, they can be investigated by the police who rightly so are part of the executive as they execute/enforce laws. A judge can also be removed for incompetence and the petition can originate from any person.

Further, the President can engage the Judiciary as an arm of government and seek to get answers if he raises any questions or feels that the Judiciary is taking part in violating the same Constitution that guides its operations. If he is dissatisfied, he can initiate the process of cleaning up the Judiciary by doing away with judicial officers who act contrary to the Constitution.

The question this article set out to answer is, can the President do any more other than simply suspend his cabinet and principal secretaries? The answer is YES.