BY SHADRACH SHARU MUYESU
Debate over the powers of the legislature in Kenya, its relationship with the other arms of Government and an apparent encroachment of these three arms into each other’s territory has dominated the country’s political space. Just recently, the public was treated to spat between the National Assembly represented by its Speaker Justin Muturi and the Executive. PresidentUhuru has been drawn into the debate. The bone of contention has been whether the National Assembly was right in summoning Cabinet Secretaries to respond to questions relating to their dockets.
In addressing this question and by extension the nexus between Parliament, Legislature and the Judiciary, I shall refer to the Constitution, the revised Parliamentary Standing Orders of 2013 and the distinction between rules and standards, and the eternal and inherently fundamental lessons on the rule of law, separation of powers and constitutionalism.
CONSTITUTIONAL SUPREMACY
According to Article 1 of the new Constitution of Kenya, sovereign power in Kenya belongs to its citizens and is exercised by Parliament in accordance to the Constitution. By and large, the Constitution is supreme. Thus, Parliamentary supremacy is limited to positive legislation on its part. This is in contrast to countries such as the United Kingdom that enjoy total Parliamentary supremacy which is in the words of A.V Dicey “…the right to make or unmake any law whatever: and, further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament…” Sovereignty in this case is as defined by West’s Encyclopedia of American Law, “the supreme, absolute, and uncontrollable power by which an independent state is governed and from which all specific political powers are derived; the intentional independence of a state, combined with the right and power of regulating its internal affairs without foreign interference”..
On the rule of law and Constitutional Supremacy, the Constitution under Article 2 has never been clearer: “This Constitution is the supreme law of the Republic and Binds all persons and all State organs at both levels of government.(2) No person may claim or exercise State authority except as authorized under this Constitution. (3) The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ. (4) Any law, including customary law that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid. (5) The general rules of international law shall form part law of Kenya.”
Under Article 3, the Constitution goes on to emphasize the obligation that every person has to respect, uphold and defend the same Constitution. In so far as Parliament makes laws and executes, its mandate under articles 94 to 96 has to be within the caveats envisaged in the Constitution.
SEPARATION OF POWERS
Baron de Montesquieu was very profound when, in delimiting the principle of separation of powers, he said that the various arms of governments each wield a certain degree of powers which enable them not only to execute their mandate but also to provide checks on the other arms. As he writes in the Moi University Law Journal under the paper The Social Contract Conceptualization of the Theory and Institution of Governance, John Mutakha Kangu is very elaborate that separation of powers may also be defined in the spectrum of governance: The law that seeks to define distribute and constrain the use of state powers so that power is applied to the objectives of which it was intended and the manner in which it was intended.
By and large, no single arm of government is allowed to usurp the prerogatives of any other, for doing so would be a blatant breach of the Constitution.
CONSTITUTIONALISM
As S.A. De Smith noted in The New Commonwealth and its Constitutions, constitutionalism is the proposition that the exercise of Government power shall be bound by rules prescribing the procedure according to which legislative and executive acts are to be performed and delimiting the permissible content. In simpler terms, constitutionalism is the demand that constitutional values and principles should be respected.
The principles highlighted above work together towards limiting arbitrary power in a state the law itself inevitably creates.
The power struggles currently witnessed in Kenya arise from the fact that these values, perhaps as a result of tribalism, political faithfulness or a limited understanding of the of our laws as they currently are, have not been wholly dealt with.
FUNCTIONS OF THE NATIONAL ASSEMBLY
Article 95 gives us the powers of the National Assembly as:
(1) The National Assembly represents the people of the constituencies and special interests in the National Assembly. (2) The National Assembly deliberates on and resolves issues of concern to the people. (3) The National Assembly enacts legislation in accordance with Part 4 of this Chapter. (4) The National Assembly –– (a) determines the allocation of national revenue between the levels of government, as provided in Part 4 of Chapter Twelve; (b) appropriates funds for expenditure by the national government and other national State organs; and (c) exercises oversight over national revenue and its expenditure. (5) The National Assembly—(a) reviews the conduct in office of the President, the Deputy President and other State officers and initiates the process of removing them from office; and (b) exercises oversight of State organs.
Sub article 5 is of a particular importance. It is the one that gives Parliament the mandate to exercise a check on the Executive arm of Government. Article 124 establishes Committees and Standing Orders used by Parliament in the execution of this mandate. While Parliament has discretion in the creation of Parliamentary Committees, the creation of Standing Orders is a must. The Standing Orders guide Parliament in the exercise of its oversight roles.
According to Section 191 of the revised Parliamentary Standing Orders, “Committees shall enjoy and exercise all the powers and privileges bestowed on Parliament by the Constitution and statute, including the power to summon witnesses, receive evidence and to request for and receive papers and documents from the Government and the public”. It should be explicitly stated that the committees envisioned under section 191 are Parliamentary Select Committees and not Committees of the Whole House which under section 166, “shall not consider any matter other than a matter which has been referred to it or which it is required by these Standing Orders to consider”. The roles bestowed upon Parliament and in this case the National Assembly are therefore, unless otherwise stated, to be carried out by the Parliamentary Select Committees.
On further reading, the “may” in article 124 becomes a “shall” since, it is only through Parliamentary Select Committees that the power of oversight can be exercised. As I shall borrow from the works of Kathleen Sullivan as quoted by Walter Khobe in his article, In Defense of The Supreme Court which appeared in The Nairobi Law Monthly in October 2014, it is a virtual axiom in constitutional law that constitutional norms come in 2 prototypes: rules and standards/principles. Rules draw a sharp line between forbidden and permissible conduct. They rely on an ex ante perspective and are therefore considered the domain of the constitutional drafter. Standards, by contrast should be employed to address complex, variegated, behaviors that require the weighing of multiple variables. Standards do not draw a distinct line between permissible and impermissible conduct. Standards therefore invoke delegation i.e constitutional drafters instruct the legislature to bring the normative intent into application in specific contexts. Thus constitutional rules, for instance, are said to be appropriate when certainty, uniformity, stability and security are highly valued, whereas constitutional standards are seen more appropriate when flexibility, individualization, open-endedness and dynamism is important.
The Constitution therefore forms the skeleton while the enabling statues form the flesh. By virtue of its existence and unless it can be proved otherwise, a statute is taken to have been in conformity with the Constitution. Any interpretation of the same statute by the courts should be in a form as close as possible to that envisaged by the drafters (which in this case is the Parliament or in being specific to this article, the National Assembly) who derive their powers from the Constitution under Article 95. It is thus safe to say that
Parliament has an obligation to create Standing Orders to govern its business.
Parliament has an obligation to create Select Committees to execute her supervisory mandates under article 95(5)
The powers of supervision and summon shall only be carried out by the Select Committees envisaged above.
It is clear that the Constitution has set guidelines, the standing orders have given the elaboration and in consequence even providing for a committee whose sole purpose is the supervision of the Executive. The question thus begs, why should cabinet secretaries appear before the whole house? From which script are Parliamentarians reading?
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