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Cover Story

The Vulnerable Guardian Angel: Kenya’s Parliament in the Post-2010 Constitution

Volume 16, Issue 1  | 
Published 07/06/2019
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By Gitungo Wamere & Jessica Musila of Mzalendo Trust

By-line: Gitungo was Mzalendo's Program Officer during the 11th Parliament. He is presently on study leave pursuing a Master of Public Policy in University of Erfurt, Germany.

For the past eight years, Jessica Musila has served as the Executive Director, Mzalendo Trust, a parliamentary monitoring organisation. In this article, Jessica and Gitungo share the missteps the post-2010 Parliament has made in executing its mandate of being the people’s voice in representation, oversight and legislative matters.

A key driver to enact the 2010 Constitution was the public demand to take back ownership of the nation from the power elite and re-establish a shared whole. The new dispensation introduced a bicameral Parliament established with the mandate to exercise the people’s sovereign power, represent the diversity of the nation and their will. In ascribing to Parliament these lofty goals, Kenyans sought a departure from the tyrannical rule of the imperial presidency that had evolved from independence.

 

In March 2013, the 11th Parliament became the first in the new constitutional dispensation. Additionally, it was the largest and most inclusive Parliament in our history. Parliament now has a lot of powers which can be used for the good of the nation.  Article 94(4) empowers the Parliament to be a prefect of all institutions by guarding the Constitution. This may be extrapolated to mean that Parliament has powers over all institutions in executing its oversight duties.  Parliament is evidently the guardian angel that ought to jealously protect the Kenyan dream.

Article 1 of the Constitution recognises that all sovereign power belongs to the people, then article 1(3) ‘takes’ those powers and vests them to Parliament to exercise in trust for the Kenyan people. In light of this, Kenyans legitimately place their many needs and aspirations before Parliament. The Constitution positions the Parliament as the institution with the mandate to salvage good governance and eventually consolidate Kenya’s infant democracy.

Unfortunately, the 11th Parliament may not be Kenya’s most favourite despite its inclusivity and diverse wealth of experience. The National Assembly was defined by gaffes that ranged from physical fights to passing pathetic laws. They gave credence to Parliamentary democracy pessimists like Vladimir Lenin, who wrote in his 1917 pamphlet ‘State and Revolution’, ‘Parliamentarians are members of the oppressing class voted by the oppressed to go and repress them further’. The Senate on the other hand, spent most its time crying wolf and therefore there was nothing much to write home about.

Like its predecessor at independence, the Senate has sailed in controversy. Ideally, it is supposed to be the Upper House but the structure of the law has ensured that it remains an underdog. It is no surprise that debate on its importance lives on.

In the first few months of its existence, the Senate had to go to the Supreme Court. The National Assembly had resolved that Senate had no business in legislating the Division of Revenue Bill – a function that primarily defines the roles and responsibility of the Senate.

The Senate also had its lows and a myriad of missed opportunities. The major constitutional responsibility of the Senate is to protect the interests of devolved units. To this extent, the failures of county governments may be blamed on its aloofness. The Senate didn’t use its oversight powers to the maximum to hold Governors to account. In some instances, the authority of the Senate was trimmed and decisions overturned by the court, bringing more ignominy to the House. 

The poor performance of the County Assemblies may also be blamed on the Senate. Most Members of County Assembly (MCAs) were rudderless and uninformed on their roles. The Senate should have ensured proper capacity building of MCAs in order to execute their mandate properly and as per the constitution. As the debate on the place of the Senate persists, it will be interesting to see how the second one operates.

The bicameral Parliament was introduced as a remedy against the stronghold on power into which the imperial presidency evolved between 1966 and 2002, by imposing constitutional amendments and practices that rendered the other arms of government, especially Parliament, mere lackeys (see Society for International Development (SID), The Presidency and Public Authority in Kenya’s new Constitutional Order (2011). It also infringed on the rights of the public. The 2010 Constitution therefore mandated Parliament to vet all Presidential appointees, oversee revenue and its expenditure, and oversee the Presidency and other State officers. Unfortunately, oversight of presidential appointees has been minimum, with Parliament being used as a mere conveyor belt.

Then again, since Kenya embraced the Presidential system, the place of the opposition in the National Assembly has been rather weak, as the leader of the opposition is not automatically the Leader of Minority in either the House (indeed is probably outside Parliament entirely). The opposition leader becomes an alternative centre of power with substantial power to weaken its authority from without e.g. Raila Odinga after both the 2013 and 2017 elections. If the opposition appointees serving as the leaders of minority within Parliament are weak, it compromises the entire oversight function in both chambers, as they may choose to trade off on some issues.

Self-governance through public participation is enshrined in Kenya’s Constitution; however, Parliament is yet to actualize effective people’s participation. Bureaucracy and poor communication by Parliament remain the major impediments to realizing the principle of public participation. Critical parliamentary information like reports are often published late and calls for public input give very short notice. Consequently, rarely does the public get wholly involved in the legislative process.

The 11th Parliament, for instance, gave very short notices ranging from one day to a maximum of five days, as research by Mzalendo discovered. To include people in legislation, sufficient time must be given and information on Bills made easily accessible.

During the 11th Parliament, the ruling coalition - Jubilee - in many instances attempted to use Parliament to make ‘partisan laws’. This could not be taken in good faith however well-intentioned the laws might have been. The majoritarian tyranny did not augur well for national cohesion and nation building. In a fragile country like Kenya, this may only serve to sink the wedge of mistrust deeper, therefore, institutions ought to be wise in their exercise of power.

On the very rare occasions that Parliament has embraced the spirit of bipartisanship, it has been when deals were made. Personalization of Kenyan politics has made the institutionalization of Parliament difficult. For instance, when party leaders of big political parties disagree, unfortunately, it is the institution of Parliament that has always been picked to flex the ego muscles. This is unfortunate because Parliament ought not to be an arena of combatants with irreconcilable interests. In the months following the annulled Presidential elections, Kenya sailed in unchartered waters and despite Parliament being in place, it made the situation worse.

Law and policy are closely intertwined; the process of making the first must be informed by the second. The post-2010 Parliament has been accused of not legislating quality laws. Some laws have been declared unconstitutional or even created overlapping roles for different institutions thereby creating administrative crises. The laws often fell short of constitutional expectations and probably those of the ‘mwananchi’. This could be because the laws were passed hurriedly or Parliamentarians lack the capacity. There is need to build the capacity of our Parliamentarians for them to exercise properly powers that are within their jurisdiction.

Legislation is an exclusive Parliamentary task, consequently legislators are expected to take time and observe the environment in its entirety before making a law. In this sense, legislative work is tedious and requires dedication. Research for quality law making has been missing and some laws from Parliament have been shallow and just cosmetic. This has led to laws and policies that are out of touch with reality, or wholly incompetent legislation.

Parliamentarians’ fidelity to implementing the letter and the spirit of the Constitution has been sluggish. Eight years later, Parliament has never implemented the ‘two-thirds gender rule’ (Articles 27(8) and 81) yet the Supreme Court said it must be implemented by 2016. There is a window of opportunity for the 12th Parliament to salvage the bad image of Parliament by legislating this rule. One proposal is to have the ‘rule’ implemented by having enough extra women nominated to Parliament (as in county assemblies). Another is to make the obligation one of implementing the rule merely ‘progressively’. The first option is more popular within civil society while the second one is favoured by those who fear for an escalating wage bill.

What is needed is a commitment to constitutionalism and the tenets of democracy. The bi-cameral Parliament has not served Kenya’s interests as the levers that allow the Executive to continue to have indirect influence over it remain in place. Some scholars argue that even with good leadership, an effective government is difficult to function due to the political systems in place, more so, political parties (e.g. Allan Savory, Good Governance in Africa (2007)).

The opportunity exists to change the constitution to regulate political party structures more firmly, reduce the size of Parliament and make the right of recall of elected representatives by the people explicit and operational in order to rein in the legislators and push them to be effective. The problem is that, before we get to the referendum, the issues go to Parliament itself.

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