Why appointment of elected leaders to Cabinet posts is unconstitutional

By Duncan Okubasu

I pay homage to democracy as an important political ideal – an instructive priority and an affirmative aspiration under the Constitution of Kenya, 2010. I do not advance the argument that Article 201 (d) is rendered obsolete when the IEBC is compelled to hold an election because the person voters chose has been nominated as a Cabinet Secretary.

Instead, I attempt to examine resignation of a member of parliament to take up a position of a Cabinet Secretary at the level of abstraction in an effort to respond to a thesis that it is an encroachment on a democratic outcome to place before a “people’s” choice, an offer so constructive as to make him/her so susceptible to abandon the station of his service in pursuit of a better métier, and then resign under Article 103.

I admit as working assumptions two propositions. First, that all human beings have the inclination towards self-preservation, which is the drive behind all forms of personal advancement. Thomas Hobbes, in his “Leviathan” viewed this inclination in such a grand way when he bespeaks “force” and “fraud” as cardinal virtues. Indeed, principles that undergird constitutions such as “rule of law”, “separation of powers”, “checks and balances” and “federalism” are conceptions that brace scepticisms towards this human disposition – the aptitude to appropriate state power in continuance of self-preservation.

Encroachment of democracy

The second assumption is that the position of a cabinet secretary is more rewarding and authoritative than that of a member of parliament. This is not in the light of the theoretical formation by Carl Schmitt that the legislature is the one that “determines the exceptions”, but on the basis of the “residual” and “inherent” power theories of the executive that seem to validate the claim (as against the specific grant theory) that the executive is the most powerful agency of government. Those theories suppose that in view that the executive does not need authorisations to act and also that if there is a task that neither the judiciary or the legislature can do it is done by the executive, then it is indeed (or needs to be) powerful.

I signalled that the argument here is about encroachment of democratic outcomes.

Democracy is certainly one of the most important values that undergird the Constitution. It is mentioned replete times in the Constitution. The Preamble makes reference to “democracy”; it is listed as part of the national values and principles of good governance, and political parties are enjoined to pay homage to it, etc. As a political ideal, democracy is thus the benchmark of legitimating the representative decision-making for and in the interest of the public.

We can exemplify the essence of democracy this way. Uhuru Kenyatta is the President of the Republic of Kenya because the People of Kenya voted for him. But that statement is a fallacy – argumentum ad populum. The “People of Kenya” is a wide conception that includes those who did not take part by choice or default in the 2013 election. The population of Kenya is over 44 million. Yet only about 6 million Kenyans voted for him.

Others, as mentioned, are precluded by law from voting, others voted against him (by voting for other candidates) while others did not vote. But on the basis of the decision of 6 million people or so, President Kenyatta claimed dominion and extracted allegiance from well over 44 million people and that decision made him the chief director of the legitimate instruments of violence and coercion – on behalf of 44 million people or so. That is how important a democratic process is.

Consequently, if a democratic exercise determined that decisions in the Senate on behalf of the people of a given county will be made by Person X, is it morally justified for anyone to put before that person a choice so rare and advantageous as to make him resign as an elected representative of the people of that county, thereby compelling them to settle for a second option in his place? If the two hypotheses are admitted, it is casuistry not to imagine that until another election is done, democracy as a constitutional ideal is forestalled. Put differently, it is an intrusion of the democratic process that deprives the voters of their Mehta choice.

Of course, the Constitution envisages scenario where one would cease to be a member of parliament. That includes death – which is reconcilable with democracy in political attitude unless we admit the expression in the letter from Alcuin to Charlemagne in 798, “Nec audiendi qui solent dicere, Vox populi, vox Dei, quum tumultuositas vulgi semper insaniae proxima sit” (Loosely translated, “And those people should not be listened to who keep saying the voice of the people is the voice of God, since the riotousness of the crowd is always very close to madness”). One might also lose his station as a member of parliament if he misses certain number of sessions, if he or she scampers from or to a political party or when he is precluded to be a member of parliament. In such instances, the Constitution pictures that person the “people” chose has become pathogenic to democracy and it is consistent with democracy (and the republican thought) that a new person should be elected.

One might counter this argument on the basis that the position of Cabinet Secretary is a position that makes one to serve the entire Kenyan population. But it is only sophistry that can make one to see it that way since the process of appointment to the position of cabinet secretary is not synonymous with that of election of a member of parliament.

The latter makes use of the concept of democracy and gives meaning to it. At the level of abstraction, the morality of law, which is the individuals claim against the majority, trumps over the morality of government, which is the claim of the majority over the individual – as a result of such an appointment. This trampling is constitutionally unhealthy. But as this argument is titled, you have to believe it to see it.

Okubasu is an Advocate of the High Court, Lecturer of Constitutional Law and Researcher at the Institute for Jurisprudence, Constitutional & Administrative Law at Utrecht University