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Part II The Relationship Between the Legislature and the Executive, 4 Kenya’s Budding Bicameralism and Legislative–Executive Relations

Conrad M. Bosire

From: Separation of Powers in African Constitutionalism

Edited By: Charles M. Fombad

Content type:
Book content
Product:
Oxford Constitutions of the World [OCW]
Series:
Stellenbosch Handbooks In African Constitutional Law
Published in print:
03 March 2016
ISBN:
9780198759799

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: Google Scholar Indexing; date: 02 December 2024

(p. 116) 4  Kenya’s Budding Bicameralism and Legislative–Executive Relations

1.  Introduction

Kenya’s fairly recent constitution (adopted in August 2010) makes fundamental changes to the structure, powers, and functions of the national executive and legislature. Following the American model, the constitution establishes a presidential system of government with separation of powers between the legislature, executive, and judiciary. Prior to the current legislative and executive structures, the president was also an elected member of the legislature and cabinet ministers were appointed from serving members of the legislature, akin to the Westminster parliamentary system of government.

At the core of these fundamental changes was the desire by Kenyans to address a perennial African problem: the concentration of political and economic power in the president (or head of the executive). The culture of imperial presidency is rooted in colonial practice where the ‘Native Commissioner or the Governor General had control over other branches of government and was only answerable to London’. A brief attempt was made, at independence, to discard this colonial era arrangement by establishing Kenya as a dominion republic with the Queen of England as the head of state and a Westminster model where the prime minister was the head of government and a member of the legislature. After years of centralized colonial rule, the British attempted to bequeath a semi-federal system of government (locally known as majimbo).1 The regional system of government consisted of eight regions and a bicameral legislature at the national level consisting of a Senate whose primary role was to safeguard the interests of the regional governments.

These arrangements were, however, rejected by the emerging African elite. Like their counterparts in other newly independent African states, they dismissed the new arrangements as ‘extensions of colonial rule’. In the case of Kenya, changes were made to the independence constitution which had two effects: the recentralization of political and economic power, and the creation of a powerful executive (in the person of the president) upon whom control of state power and resources was placed. Comparisons have been drawn between presidential powers in post-colonial Kenya and the powers of the Governor General or Native Commissioner during the (p. 117) protectorate and colony days (1895‒1963).2 Abuse of state power and resources by successive presidents led to growing resentment of centralization and the personalization of public authority. This led to popular pressure for constitutional reform that ultimately led to adoption of the current constitution in 2010.

The constitution of Kenya sought to deal with centralization of power in the executive in three main ways. First, presidential powers were substantially reduced in many areas: the president no longer has direct and extensive control over the branches of government as he did in the past and many of the remaining presidential powers are subject to checks by other branches of government.3 Second, the constitution establishes a presidential system of government. During the constitutional review process, the choice of the presidential system was justified on the basis that a higher degree of separation of powers between the legislature and executive will reduce the latter’s dominance and control over the former. Lastly, the constitution establishes two levels of government: national government and forty-seven county governments across the country. At the national level, a Senate has been carved from parliament to represent and safeguard county autonomy.4

The constitutional changes made in 2010 have resulted in a higher degree of separation of powers between the legislature and executive with an elaborate system of checks and balances. This chapter analyses the structure, context, and emerging practice of legislative–executive relations under the 2010 constitution. The decision to opt for a presidential system of government (as opposed to a parliamentary or mixed one) and the re-introduction of the Senate are, as mentioned above, the defining features of the legislative and executive organs. However, the new system is superimposed on a longstanding institutional and political culture that was based on the presence of executive dominance in legislative affairs in a unicameral setting. The new system of government will, therefore, operate in a broader social, political, and historical context that will have a greater impact on their overall effectiveness.

The chapter begins by examining the broad political, social, and economic context within which legislative and executive business is to be carried out. Second, we then examine the constitutional review process and specifically highlight the factors that informed the choice of a presidential system of government. We then examine the constitutional framework for legislative–executive relations and the emerging practice under this framework.

2.  The Kenyan and Comparative Context of Executive–Legislative Relations

Following the general trend of former British colonies, as mentioned in Chapter 1, Kenya has established an American-style structure of the legislature and the executive. However, there are some important differences. First, America’s vice-president sits in the Senate while both the Kenyan president and vice-president are totally delinked from the legislature. Second, the Kenyan Senate’s power is fairly limited compared to (p. 118) the American Senate: Kenya’s Senate can only consider laws affecting counties unlike the former whose legislative role is general. While the American Senate has clear treaty ratification powers, the position regarding the Kenyan Senate is unclear in the constitution. The Kenyan Senate does not play any role in the appointment of members of the cabinet and this role is exclusively reserved for the National Assembly. Lastly, the Kenyan Senate’s supervisory powers over the affairs of government are much more limited than those of the American Senate.5

The Kenyan context further distinguishes the potential political and institutional practice from that of the United States where the current Kenyan system is borrowed from. First, parliamentary culture in Kenya has been built around veneration of the executive and subordination of legislative agenda to the executive. Past presidents and ministers were a substantive part of the legislature where they dominated the parliamentary agenda. The fact that they are no longer part of the legislature does not necessarily eliminate this culture that has been developed over time. Second, even with a deliberate will by parliament to assert its independence and control its activities, the technical capacity required and institutional re-orientation to fit a presidential system of government may itself emerge as a challenge in Kenya.

Given that the centralization of power is the defining feature of Kenya’s political and institutional culture, the nature and mandate of the Senate (safeguarding county power and autonomy) is potentially inimical to this past institutional and political culture. Indeed, a system of centralized powers and resources tends to operate more easily in a unicameral legislative setting where control over legislative affairs can be exerted more effectively. The concern now is that the nature of the mandate and role of the Senate may end up, just like its independence-era predecessor, as an additional hurdle which the national executive may want to side-step.

Even as the constitution of Kenya moves to assert the structural and functional independence of the legislature, there is an institutional and political culture built around a powerful imperial presidency that may impede the effective separation of powers that is required under a presidential system. In the absence of a deliberate decision to transition to the current constitutional dispensation, the legislative and executive structures may end up being beholden to the past practice where parliament was subordinated to the executive. This challenge may manifest in the lack of institutional capacity and experience to undertake legislative functions in a presidential system and continued executive influence despite the constitutional measures.

Lastly, it is also necessary to note that Kenya’s political structures are weak, ethnic-based, and without central ideology or party discipline. Political parties are based on personalities and do not have strong institutional and ideological foundations. The ethno-political nature of Kenya’s politics prompted the constitutional drafters to add a requirement that a president must win at least more than half of the votes cast in at least half of the forty-seven counties. This condition has led to the building of ethnic coalitions to enable the president and the running mates to ascend to office. The nature of Kenyan politics means that the president, as head of the executive, will always rely on (p. 119) the political coalitions to ensure support of the executive in parliament. Relations between the executive and legislature in Kenya must be seen and understood from this prism. To better appreciate this, it is necessary to briefly see how this issue was dealt with during the constitutional review process.

3.  The Executive and Legislature During Kenya’s Constitutional Review Process

Kenya’s constitutional review process can be divided into two major phases: the first was under the Constitution of Kenya Review Commission (CKRC) which commenced work in 1998 and ended with an unsuccessful referendum in November 2005. The second phase commenced in 2008 under the Committee of Experts (CoE) that ended with the successful referendum of August 2010. During the entire process, spanning slightly less than two decades, several constitutional drafts emerged which had varying provisions on the national and legislative structures. The structure of the national executive and the legislature proved to be the most contentious of all the constitutional review issues, and almost derailed the entire review process.

While Kenya ended up with a presidential system of government, most of the previous constitutional drafts had provided for a mixed system with strong features of a parliamentary system of government. The experience of the imperial presidency led to widespread public resentment against a powerful executive. Successive presidents used their power and control over public institutions to pilfer state resources, favour their home regions, and crack down on political dissent. This made Kenyans roundly reject a powerful presidency similar to the pre-2010 constitutional order. The dominance of the executive in the legislature and control of legislative affairs that was witnessed in the past led to specific calls to remove the executive from parliament. This may well have informed the call for a presidential system of government.6

The CKRC extensively documented the public’s views regarding the national legislature and executive, as well as other aspects of the constitutional review process.7 With regard to the system or form of government, public views were divided over two different systems. A part of the public recommended a system of government with a president who exercised presidential power and is subject to democratic checks and balances by the other arms of government. A majority of the people who expressed their views, however, proposed a parliamentary system of government with the prime minister (leader of the majority party in parliament) exercising executive power and a ceremonial president.8

While the public called for a ceremonial head of state or president, they were generally agreed that the president should nevertheless be directly elected by voters. This was justified on the basis that a directly elected president will be accountable to the voters. The public also wanted the president to choose a running mate who was to be his or her vice-president after the election. Furthermore, the public was unanimous (p. 120) that the president should not be a member of the legislature and that there should be a strict separation of powers between the legislature and executive with appropriate checks and balances.9

The fear of an overly powerful executive, and specifically the presidency, influenced public views regarding the structure of the national executive and legislature. It was felt that the presence of the president in parliament, as was the case in the previous dispensation, could compromise the independence of the legislature and separation of powers. On the other hand, the need to check presidential power may have led to a suggestion, by the majority of the public who presented their views, for a position of prime minister who would share executive power with the president. However, there was no clarity on how the executive power was to be shared and exercised between the president and the prime minister.

After collecting and collating public views, the CKRC produced its first draft. It attempted to strike a balance between the opposing public views. The draft provided for an executive structure composed of the president and prime minister with the latter being the leader of the majority party in parliament. The president and the prime minister were to share executive power although the prime minister was to be head of government. The CKRC draft was submitted to a National Constitutional Conference for discussion and adoption.10

During the National Constitutional Conference, sharp political differences emerged between two political sides. One group, allied to the then President Mwai Kibaki, favoured a president with executive power who is not part of the legislature but is still subject to strong parliamentary checks. The other group, led by the then main political opposition, called for a parliamentary system with a prime minister based in parliament with some executive power. The opposition group seemed to hold sway at the Conference as they received majority support during the Conference. This led to a walk-out from the Conference by politicians allied to the then president. The draft that was adopted from the Conference had strong features of a parliamentary system. The position of the prime minister was retained in the draft that emerged from the Conference and his powers were enhanced.

The draft from the National Constitutional Conference was referred to parliament for debate and approval. This effectively led to the political wrangles being transferred to parliament. After unsuccessful attempts to change the Conference draft, parliament referred the draft to the Attorney-General for redrafting and publication of a constitution bill in readiness for a referendum vote. However, while carrying out the redrafting, the Attorney-General made material changes to the draft adopted by the National Constitutional Conference which almost fundamentally changed what the delegates had proposed to the national legislative and executive structures. The amendments by the Attorney-General, a presidential appointee, retained but substantially weakened the powers of the prime minister. For instance, while the Conference draft provided that the prime minister was to be the leader of the majority party in (p. 121) parliament and established the prime minister as head of government, the constitution bill developed by the Attorney-General provided that the president could appoint any member of the legislature as prime minister and expressly stated that the prime minister was under the control and direction of the president.11

A clear majority of the people were in favour of a bicameral legislature composed of two chambers. Accordingly, both the drafts developed by the CKRC and the National Constitutional Conference provided for a bicameral parliament. However, the constitution bill that was prepared for the referendum reversed this and provided for a unicameral legislature.12 While the constitution bill provided for the position of a prime minister, it weakened the parliamentary system provided for in the earlier drafts. The constitution bill was, however, defeated in a referendum that was held in November 2005.

The law that was guiding the review process lapsed soon after the constitutional referendum of 2005. This led to a lull between the first and second phases of the constitutional review process. The second phase of the review process was started as part of the long-term measures to address the political violence which ensued after disputed presidential elections of December 2007. Constitutional review was seen as one of the long-term measures to consolidate political stability and national unity.13 A new law which established a Committee of Experts (CoE) to guide the review process was passed in early 2008. The mandate of the CoE was narrower than that of the CKRC. While the CKRC carried out extensive public consultation and developed reports and full constitutional drafts, the experts were only required to review past constitutional drafts and isolate contentious issues for consensus-building and limited stakeholder and public consultation. Furthermore, unlike the CKRC which had time to operate that ran into years, the CKRC had only about a year to complete its work.

The structures of the executive and legislature were singled out as the most contentious issue by the CoE. The CoE developed three main drafts during its period of operation. In its first draft, the harmonized draft constitution, the CoE provided for a structure of the executive composed of the president and prime minister. This was as a result of the review of past constitutional drafts and public views which were documented during the constitutional review process. The CoE came to the conclusion that Kenyans wanted a mixed system of government where executive power was shared between the president and prime minister. The first draft provided for arrangements (p. 122) similar to those in the draft that was produced by the National Constitutional Conference during the first phase of the review process.

The CoE received views on its first draft which resulted in the second draft named ‘Revised Harmonised Draft’. The second draft retained the position of prime minister and only made minimal adjustments to the structure of the national legislature and the national executive. The first and second drafts provided for the prime minister as head of government and generally retained shared executive powers between the president and the prime minister.14 The two constitutional drafts, therefore, largely reflected the public consensus on the structures of the national executive and legislature that were presented to the CKRC as discussed earlier.

The review law required the second draft to be forwarded to the parliamentary select committee that was established to assist in building political consensus. It is at this stage that a political agreement between politicians from the ruling and opposition was reached to have a presidential system of government. The political sides agreed to a presidential system with the president as head of the executive and subject to parliamentary checks. It was agreed that the position of prime minister be removed from the constitutional drafts. The experts had little choice than to follow the political agreement that was reached by the politicians and revised the third draft to provide for the presidential system of government that is provided for in the current constitution.

Hence, although a majority of public views, and indeed previous constitutional drafts, provided for strong features of a parliamentary system, this was discarded towards the end of the constitutional review process. The political settlement on a presidential system came as a surprise to the public, as well as the CoE since neither political side had seriously canvassed for such a system throughout the entire constitutional process.15 With regard to the structure of the legislature, the CoE retained the bicameral structure which was provided for in most of the previous constitutional drafts, in accordance with the majority of public views on the legislature.

4.  The Constitutional Framework for the National Executive And Legislature

The system of government provided for in the current constitution, as discussed earlier, is a presidential one. None of the members of the executive are part of parliament. There is a separation of powers between the two branches of government with many of the traditional checks and balances (see Chapter 2). The primary driving force behind this system of government and structure was, as was earlier pointed out, the need to limit and check presidential power as a result of past abuse of this office. The clamour to reduce the influence of the executive on the legislature may have been interpreted by constitutional experts and the politicians as preference for a presidential system of government.

(p. 123) Apart from the national executive and legislative structures, the devolved system of government also affects the legislative–executive relations in two main ways. First, governmental power is not only divided horizontally between the three traditional branches of government (executive, legislature, and judiciary), but governmental power is vertically split between the national and county levels of government. In turn, devolved power is split into executive and legislative power at the county level. Accordingly, unlike the previous constitution where all governmental power was centralized, executive and legislative power is two-tiered (at national and county levels) in the constitution. The vesting of power in a different level of government contributes to the overall objective of reducing the concentration of power and resources at the centre, the effect of which is all too familiar to Kenyans.

Second, the national legislature is split into two chambers primarily because of the devolved system of government. The Senate, which is the second chamber of the legislature, is established primarily to safeguard the autonomy and interests of the forty-seven counties at the national level. The legislative and other powers of the Senate and even its structures are designed to promote the interests of county governments. This core role of the Senate (protection of counties) has significantly impacted on how executive–legislative functions are carried out under the current constitutional dispensation. The place of bicameralism in executive–legislative relations is discussed later.

4.1  The national executive

The president is both head of state and head of government. A candidate is elected as president if he or she receives more than half of the votes cast and at least 25 per cent of votes in more than half of the forty-seven counties. If this threshold is not achieved on the first round, the two candidates with the highest number of votes will go into a run-off and the one with the most votes (on the second vote) will be declared the president. A person elected as president can only be re-elected once. Each presidential candidate is required to choose a running mate who will become deputy president for the winning candidate. The president, and deputy, can be removed from office through an impeachment process that is instituted through the National Assembly and determined by the Senate.16

The president heads the executive which is composed of the deputy president and not more than twenty-two cabinet secretaries. Unlike the previous dispensation, the cabinet secretaries are chosen from outside the national legislature. Any member of the national legislature who is nominated and approved as a member of the cabinet has to resign from the legislature in order to adhere to the principle of separation of powers. The president is also the Commander-in-Chief of the Kenya Defence Forces and chairperson of the National Security Council. Ghai and Cottrell observe that this power implies that the president has a major say on defence matters as the highest executive authority and chair of the National Security Council.17

(p. 124) While the constitution bestows upon the president powers and responsibilities of the head of state and government, a major difference with the past dispensation is that these powers have been limited and further subjected to checks by the other organs of government. The president has the power to nominate members of the cabinet but all nominees have to be vetted and approved by the National Assembly. The National Assembly also has to approve all other major appointments including: permanent secretaries, members of the electoral commission and the Judicial Service Commission, the Attorney-General, and ambassadors, amongst other senior appointments. Furthermore, the president can only make decisions such as declaration of a state of emergency, and declaration of war with the concurrence of parliament. The president can no longer dissolve parliament, establish and abolish public offices, or nominate members of the National Assembly, as he used to do under the old Kenyan constitution.

The president runs, with the assistance of the cabinet secretaries, the affairs of the national executive and coordinates governmental functions. As the head of government, the president is empowered to chair cabinet meetings, direct and coordinate the functions of ministries and government departments, and assign the responsibility of implementation of legislation.18 The president’s state functions include receiving foreign and diplomatic and consular representatives, conferring honours, making a declaration of a state of emergency, or a declaration of a state of war. As head of state, the president is required to promote nation-building and national unity. The constitution requires the president to be the symbol of national unity, to safeguard the constitution, safeguard Kenya’s sovereignty, promote and enhance national unity, and promote respect for diversity.19 The president is also required to promote the respect for human rights and rule of law. Other head of state functions include receiving foreign and diplomatic and consular representatives and the conferring of honours.

In view of the fundamentally changed structures of the executive, the president and the entire executive have to develop systems and ways of relating to the national legislature which conform to the broad constitutional framework. Specifically, the executive agenda will only be favourably considered if the executive has support in both chambers. This will, in turn, depend on the number of candidates from the president and deputy president’s party or coalition (and other supporters) that are elected to the Senate and the National Assembly. In the process, the general challenges related to the presidential system of government (such as deadlock between the executive and legislature) cannot be eliminated.

4.2  The national legislature

The bicameral structure of Kenya’s legislature has resulted in the splitting of parliament into two chambers: the National Assembly and Senate. The Senate’s legislative mandate is limited to matters affecting counties which it shares with the National Assembly while the latter has an exclusive legislative mandate on legislative matters that do not concern counties. The two chambers also carry out the traditional checks and balances (p. 125) against the executive. Similarly, the Senate’s review and oversight powers are relevant to the Senate’s core mandate of protecting county governments. However, there are general oversight and review powers that are also equally shared between the chambers.

The National Assembly is composed of 290 national legislators who are elected from single-member constituencies, forty-seven women representatives elected from each of the forty-seven counties, and twelve members nominated by parties represented in parliament in proportion to party performance in the constituencies. The twelve nominees are meant to represent special interests which include: young people, persons with disabilities, and workers.20 The National Assembly is also composed of the Speaker who is an ex officio member of the chamber. The Senate, on the other hand, has forty-seven senators who are directly elected by voters from the forty-seven counties, sixteen women representatives, and four nominated representatives representing young people and persons with disabilities in the Senate (two male and two female each). The Senate Speaker too is ex officio.

Legislative power is shared between the two chambers and there is a system of checks and balances on the executive. These include: the power to review and approve appointments by the executive, impeachment powers on the president and the deputy president, and power to oversee executive action, amongst other powers that are discussed in detail later. Similarly, there is a division of review and oversight role between the two chambers. The Senate has certain special oversight and review powers relevant to its core mandate (protecting counties) while there are general oversight and review powers shared by the two chambers.

5.  Assessment of Executive–Legislative Relations in Kenya

The national executive requires its laws, budget, policies, and appointments to be approved by the legislature. As a result, the president and the cabinet require the support of the majority of members of both Houses. Previously, ministers who were also members of parliament championed the executive agenda in parliament. The position of the Leader of Government Business was reserved for the vice-president, also a serving member of the legislature. However, under the current dispensation, the president has to work with friendly legislators to ensure that the executive agenda is considered in the legislature.

Unlike the American system where there are mid-term elections for the legislature, Kenya’s elections are held on the same day. Concurrent presidential and parliamentary elections provide presidential candidates with an opportunity to form political coalitions that will facilitate smooth executive–legislative relations.21 The run-up to the March 2013 general election saw the formation of ethnic-based political coalitions in a bid to capture the presidency. As a result, the coalition that won the March 2013 general election had slight majorities in both the National Assembly and the Senate. Hence, persons elected as speakers of both Houses were preferred candidates of the (p. 126) ruling coalition. This has provided the president with support to push the executive agenda through parliament.

However, even with the support of the executive in both chambers, emerging practice shows that the executive is ready to side-step the Senate and deal exclusively with the National Assembly. In some cases discussed later, the desire to avoid the Senate has resulted in the Senate’s unconstitutional exclusion from legislative business (engineered by the executive and the National Assembly).22 This is primarily because the ruling coalition (Jubilee Alliance) that won the March 2013 election has majorities in both Houses, and support for its agenda is guaranteed more in the National Assembly than the Senate for a number of reasons.

The ratio of members from the ruling coalition to that of the opposition coalition is far greater in the National Assembly than Senate. In the March general election, parties affiliated to the ruling coalition secured 162 seats of the 349 seats while parties from the second largest political coalition (Coalition for Reform and Democracy (CORD)) secured 138 seats. Amani Coalition, the third coalition, secured fourteen seats while the rest of the seats (nine) were shared between individual parties and an independent candidate.23 In the Senate, the ruling coalition narrowly clinched the majority with twenty-one elected senators against CORD’s twenty elected senators. The other six seats were taken by the smaller coalitions and parties.

Representation in the National Assembly is mostly based on population criteria and this ensured high numbers of members for the ruling coalition whose support base was mainly in highly populated regions of the country. Elected seats of the Senate, on the other hand, are based on the forty-seven counties. The executive is therefore more likely to side with the National Assembly where it is stronger in numbers than the Senate.

Bicameralism complicates legislative business as the executive has to work out strategies of ensuring its agenda goes through the two chambers. The additional task of passing through the Senate after the National Assembly is an inconvenience that the Executive may wish to avoid. Furthermore, the nature of mandate of the Senate (safeguarding county autonomy) requires measures such as pushing for the transfer of more powers and resources to counties from the centre and the executive may not be entirely comfortable with such an agenda.

In order to consolidate control of the National Assembly, the ruling coalition in parliament used its numbers to ensure that its members chaired the most crucial committees of the National Assembly. The committees include: the House Business Committee, which has the role of planning the parliamentary calendar; and the Budget Committee, which is in charge of considering budget proposals by the National Treasury and tabling the proposals. Other committees chaired by the ruling coalition include: the Departmental Committee on Administration and National Security, the Defence and (p. 127) Foreign Relations Committee, and the Justice and Legal Affairs Committee. The speaker chairs the House Business Committee, House Rules Committee, and the Appointments Committees.24 Amongst the important committees left to the opposition coalition are the Public Accounts Committee and the Public Investments Committee which the opposition ‘wrestled’ from the ruling coalition. These committees play a crucial role in ordering legislative activities, considering laws, and exercising oversight.

5.1  The law-making process

Legislative power of the two chambers is exercised through bills. Bills concerning counties have to be considered in both chambers while those not concerning the counties are exclusively dealt with in the National Assembly. The Constitution defines a bill concerning county governments as one which affects the powers of county governments which are listed under the Fourth Schedule to the constitution. This is not a very helpful definition. A bill concerning counties also includes one that relates to the election of the county executive or legislature, or a bill that affects the finances of county governments.25 With the exception of money bills, any of the bills affecting counties can be introduced in either House; money bills can only originate or be introduced in the National Assembly.26 A money bill is defined as a bill that deals with taxes (excluding county taxes), imposition of a charge on a public fund, borrowing or guaranteeing a loan, and related matters.27 A money bill touching on counties can only be referred to the Senate after being debated and passed in the National Assembly.

There is no clear constitutional distinction between a bill which affects counties and one that does not. The constitution requires the two speakers to resolve the question of whether a bill affects counties or not before it is introduced to either chamber. Many bills actually affect counties and it will depend on the willingness and enthusiasm of the Senate to review legislation and ensure that county interests are promoted. This lack of clarity has in some cases led to attempts to exclude the Senate and subsequent conflict between the two chambers.

Bills concerning counties are divided into two further categories: ordinary and special bills concerning counties. Special bills require a special majority vote (two-thirds) of the National Assembly to veto the decision of the Senate to pass the bill into law. Ordinary bills, on the other hand, only require a simple majority to be overturned by either House. Special bills concerning counties include: bills relating to the election of members of a county assembly or the county executive, or the annual County Allocation of Revenue Bill (CARB) which divides national revenue allocated to counties amongst the forty-seven counties. In these two bills, the National Assembly can only veto the Senate decision after garnering two-thirds of the vote.

Where there is a deadlock between the two chambers, the constitution provides for the formation of a mediation committee to come up with a consensus bill. If the (p. 128) consensus bill is not passed by both chambers, the proposed legislation is defeated. If any bill on a matter concerning counties is passed by both chambers or by the National Assembly (if the bill does not affect counties), the bill is referred to the president for assent before it becomes law. The president can either assent to the bill or send it back to parliament. The two Houses or the National Assembly (as the case may be) can either amend the bill to incorporate the president’s concern or overturn the president’s veto by raising a two-thirds majority vote. If parliament manages to raise the required numbers (two-thirds) to overturn the president’s veto, the president is required to promptly assent to the bill as passed by parliament.

The majority of laws considered by parliament are usually developed and sponsored by the executive and almost all of these laws have been introduced in the National Assembly. Almost all bills initiated through the Senate are usually by private member bills prepared by senators. The only bill, perhaps, that comes from the executive (National Treasury) to the Senate is the CARB that the Senate has a special power to consider and pass. The majority leader in the National Assembly is, in practice, given the task of presenting laws prepared by the executive to the National Assembly.

One of the first major disputes between the two chambers related to the manner in which the Annual Division of Revenue Bill (DORB) for the financial year 2013‒14 was passed. The DORB apportions revenue between the national and county levels of government. While the constitution mentions that the Senate has a special power over the CARB which divides the county share amongst counties, it is silent on the role of the Senate over the DORB that divides revenue between the national and county levels. In this case, the speaker of the National Assembly, after passing the DORB of 2013‒14, handed it over to the Speaker of the Senate. The Senate, however, sought to alter the DORB passed by the National Assembly by increasing the county share.

The Speaker of the National Assembly ignored the Senate amendments and passed on the bill (as initially passed by the National Assembly) to the president for assent. The constitution provides that when there is a legislative deadlock between the two Houses, a mediation team composed of equal numbers from each chamber is supposed to be constituted in order to develop a consensus bill. Against the advice of the Commission for the Implementation of the Constitution, the president assented to the bill on the grounds that any further delay with the bill would affect budget implementation.

The Senate took the matter to the Supreme Court (through an advisory opinion) and the Court ruled (with one judge dissenting) that the DORB is a bill affecting counties and the Senate has a role to debate and vote on the bill.28 The Court followed its previous ruling on matters affecting counties in the case of Re the Matter of the Interim Independent Electoral Commission29 where the Court noted that ‘ … any national level activity that has a significant impact on county government would come within the purview of a matter concerning the county governments’.

The Court therefore concluded that the DORB is a bill that affects county governments and should have been considered by the Senate. The Court advised that in the (p. 129) instant case, the proper procedure was for the two chambers to form a mediation committee of equal numbers from the same House to develop a consensus bill, in an attempt to resolve the stalemate, as provided for in the constitution.30

In late 2014, the National Assembly debated and passed an amendment bill that was meant to amend twenty laws on security issues. The government argued that these amendments were necessary to ensure that the security agencies were able to deal with the emerging insecurity in the country related to terrorism. The bill was rushed through the National Assembly with special motions introduced to reduce parliamentary time for debate. The Speaker ignored near-violent protests by the opposition on the floor of the National Assembly and presided over the passing of the bill with the support of the majority members of the House from the ruling coalition. The president assented to the bill the following day.

Again, the Senate was not involved in the passing of the laws. However, the Speakers of the two chambers consulted and reached an agreement that amendments that touch on county matters be deleted so that the bill does not have to be taken to the Senate.31 The agreement between the Senate and the National Assembly Speakers to have provisions requiring the Senate’s involvement deleted, instead of being considered by the House, points to the Senate Speaker’s willingness to abdicate the proper role of the Senate. As stated earlier, Speakers of both chambers are preferred candidates of the ruling coalition and a different Speaker may have sought to assert the Senate’s role in the amendments rather than avoiding it.

While the constitution requires Speakers to make a joint decision on whether a bill affects counties or not, this decision is in practice made by the majority leader who usually labels the tables in the National Assembly as not affecting counties. No clear parliamentary procedures have been adopted to ensure a clear process of ‘tagging’ proposed laws as affecting counties or not. In November 2014, Senators observed that forty-six laws which were passed by the National Assembly ought to have been referred to the Senate and were not referred as required by the constitution.32 Amongst the bills/laws which ought to have been presented to the Senate but have been ‘tagged’ as not affecting counties are the Water Bill (2014) which was tabled in the National Assembly in mid-2014, the Mining Bill (2014) which was passed by the Senate and handed to the president for assent and many other bills which are lined up for tabling in the National Assembly.

The majority leader in the National Assembly, a position further borrowed from the American system, assists the executive to have its laws tabled and pushed through the national legislature. The majority leader has essentially become the representative of the national executive in parliament.33 A bulk of the proposed legislation that is tabled (p. 130) in the National Assembly is usually executive-sponsored. This is a trend which has been carried from the former dispensation where legislative development was driven by the executive and legislation pushed through in parliament by ministers who were part of the legislature. The only difference now is that the executive has to rely on the majority leader and members of the ruling coalition to push legislation.

5.2  Oversight of the executive

Past abuse of presidential and state power led to constitutional provisions for a stronger oversight role over the executive in the constitution. The power to check and oversee the executive is, in turn, split between the National Assembly and the Senate. The oversight powers of the legislature can be divided into three: exclusive oversight powers of the National Assembly, oversight powers shared by the two chambers, and special oversight powers of the Senate on specific matters touching on counties.

A bulk of the horizontal checks and balances are bestowed on the National Assembly. The constitution specifically provides that the National Assembly exercises oversight of state organs.34 Most senior appointments by the president are, as explained earlier, subject to the ratification of the National Assembly. The National Assembly is, in turn, required to ensure that the president satisfies the constitution in making appointments such as the requirements of standards of integrity, respect for diversity and regional balance, among other constitutional requirements.35 The president is also required to address the opening of a newly elected National Assembly and the Senate and also address a special sitting of the two chambers once each year to report on the progress in achieving the national values stated in the constitution. Additionally, the president is required to submit a report of the progress for tabling before the two chambers.

The numbers in the National Assembly have ensured that the president’s nominees for various positions get a nod from the chamber even where fairly serious questions have been raised. While vetting the president’s nominees for the position of cabinet secretaries, members from the opposition coalition opposed the approval of two nominees. According to the members, one of the candidates lacked the standard of integrity required to serve in the ministry while the other nominee failed to give satisfactory answers on how she was to handle the docket that she was proposed to head. The Vetting Committee and the National Assembly, however, confirmed the nominees despite questions raised by legislators from the opposition coalition.36

In June 2015, the National Assembly rejected one of the president’s nominees for the position of secretary to the cabinet. The nominee was at the time serving as the Principal Secretary in the Ministry of the Interior and Coordination of National Government and the president sought to elevate her to the position of Secretary to the Cabinet, a position that requires the National Assembly’s approval. The Vetting (p. 131) Committee and most members of the National Assembly opposed her nomination on grounds that the nominee, while in her position of Principal Secretary, wrote a ‘rude letter’ to parliament. The letter was addressed to clerks of the Senate and National Assembly raising concerns about frequent visits and requests to her office by members of both chambers asking for irregular transfers or dismissal of public officers serving under her docket in various stations across the country.37

The report of the Vetting Committee stated that the letter was written in bad faith and the nominee ‘displayed arrogance and insensitivity to the needs and concerns of the public and elected leaders’.38 The majority of the members of the National Assembly who rose to speak supported the motion. Attempts by the majority leader to seek a postponement to allow more time for debate were unsuccessful. After rejection of the nominee, the presidency issued a statement that defended the nominee’s professionalism and strong work ethic that led to her nomination. The president expressed ‘profound disappointment’ with the decision of the National Assembly to reject the nominee.39 This single incident demonstrates that while the president has the support of the National Assembly, the latter can withdraw support where its interests are affected. The Commission for the Implementation of the Constitution (CIC) indicated that it will challenge the National Assembly’s decision in court noting that the National Assembly had been engaged in a vendetta, as opposed to acting objectively, when it made the decision to reject the nominee.40

While most of the major presidential appointments are the preserve of the National Assembly, a few of the appointments are subject to ‘approval of Parliament’ and therefore require the approval of both chambers. For instance, the appointment of the Inspector General of Police is subject to the approval of both the National Assembly and the Senate.41 Furthermore, impeachment proceedings against the president or the deputy president are commenced in the National Assembly but it is only in the Senate that the actual impeachment process is held and a final decision is taken. Both chambers approve deployment of national forces in and outside of Kenya42 and both chambers also jointly approve the extension of the term of parliament when the country is at war.

The Senate has special and exclusive powers relevant to its mandate of the protection of county governments. The Senate has the power to set, by a special resolution, the basis of division of revenue between the forty-seven counties every five years. Once the Senate has passed this special resolution, the National Assembly can only change this basis through a two-thirds majority vote. The constitution also gives the Senate power to overturn decisions of the executive on certain matters concerning counties. First, while the constitution recognizes that the national executive can intervene in county (p. 132) affairs where the county fails to perform its functions or adhere to national financial regulations, the Senate has the power to terminate such an intervention at any time.43 Furthermore, while the constitution provides for grounds and procedures through which the president can suspend a county government, it also provides that the Senate can terminate the suspension at any time.44

Both the National Assembly and the Senate have the power to summon members of the executive and require specific answers on issues. The constitution specifically provides that a cabinet secretary must appear before a committee of the National Assembly or the Senate when required to do so and answer any questions concerning a matter for which the cabinet secretary is responsible. Generally, the legislative scrutiny of executive action is done through committees as opposed to the previous constitutional dispensation when ministers, who were parliamentarians, answered questions from other members during ‘question time’ in parliament.

The National Assembly has, in the past, sought to bring back the previous parliamentary system of ‘question time’ through the back door. This was achieved by amending House Rules to provide for sessions where cabinet secretaries would attend sessions every Tuesday to answer questions on the executive before the ‘Committee of the Whole House’. Initially, the president had raised concerns regarding the regular summoning of cabinet secretaries to appear before committees of the National Assembly. He noted that the summons wasted valuable time that the cabinet secretaries could have used for running executive business.45

The CIC advised that the move to establish a Committee of the Whole House would be unconstitutional as it offends the principle of separation of powers as articulated in the constitution. The CIC based its advice on the fact that the current constitutional framework seeks to separate the executive from the legislature to the fullest extent possible. The CIC concluded that the proposal was akin to reintroducing the ‘question time’ which allowed the executive to participate in the business of the legislature indirectly.46 This plan was, however, abandoned by the National Assembly, possibly as a result of the protestations from the executive and institutions such as the CIC.

5.3  The budget-making process

The constitution of Kenya 2010 greatly enhanced the role of the legislature in budget-making and supervision of public expenditure. Previously, only the executive, through the National Treasury, had the power to prepare the national budget. The budget proposals were not subject to parliamentary scrutiny or input. The legislature’s role was limited to approval of expenditure and the usual oversight of the use of public resources. The current legislature has budget-making powers which include making substantial adjustments to the budget proposals made by the National Treasury. (p. 133) Additionally, the legislature has the usual power of approving all public expenditure by the national government.

The budget process is an important one for the ruling coalition since its priorities can only be pursued through budgetary allocation. The Chairman of the Budget and Appropriations Committee (BAC) is headed by a member from the ruling coalition. The cabinet secretary usually presents budgetary proposals to the BAC who then make a report to the whole House. The whole House considers the submissions of the cabinet secretary (to the committee) and recommendations of the committee and adopts the budgetary proposals. In the process, the BAC and the whole House can make amendments proposed by the National Treasury.

6.  Conclusion

The presidential system of government (which requires separation of power between the legislature and executive) as well as the bicameral system are indeed the defining features of the relations between the legislature and the executive in Kenya. These features were intended to curb the national executive’s past dominance over the legislative branch. Parliament now controls its own agenda and calendar without any direct controls by the national executive as was the case in the past.

The executive, with its slight majorities in both Houses, is able to have most of its agenda sail through parliament. However, the National Assembly has also demonstrated that it can stand up to the executive when its collective interests are threatened. Furthermore, there is no guarantee that every coalition that comes to power will have majorities in either or both of the chambers. In such an instance, the executive will have to negotiate and deliberate with the legislature and reach compromises on issues that are acceptable to both branches of government.

While the Senate has an integral role to play in executive and legislative relations, constitutional ambiguity on its legislative role has provided an opportunity to the National Assembly and the executive to side-step it. Most of the legislators in the National Assembly served in the previous unicameral legislature prior to March 2013 general election. The president and his deputy were also members of the last legislature under the previous constitution. Against this background, it is possible that both institutions (the National Assembly and the executive) see the Senate as an ‘irritant’. Courts have, however, demonstrated that they are prepared to support the Senate in its assertion of its role.

Bibliography

Footnotes:

1  Yash Pal Ghai and Patrick McAuslan, Public Law and Political Change in Kenya (Oxford University Press 1970) 178 explain that ‘“Majimbo” is a Swahili word which means an “administrative unit” or “region”, and is generally used to refer to those provisions of the Constitution which established the [independence] regional structure’.

2  ibid 220.

3  See generally constitution of Kenya, arts 129‒58.

4  Constitution of Kenya, arts 174‒200 and 109‒16.

5  Yash Pal Ghai and Jill Cottrell Ghai, Kenya’s Constitution: An Instrument for Change (Katiba Institute 2011) 94‒5.

6  Constitution of Kenya Review Commission (CKRC), ‘The Final Report of the Constitution of Kenya Review Commission’ (2005) 192‒5.

7  CKRC (n 6) in general.

8  ibid 192‒5.

9  ibid.

10  Report of the Constitution of Kenya Review Commission, ‘The Draft Bill to Amend the Constitution’ (2002) vol 2, ch 8, cls 148‒83.

11  For instance, art 172 of the draft from the National Constitutional Conference had provided that: ‘There shall be a Prime Minister of the Republic who shall be head of government; The Prime Minister shall co-ordinate the work of the ministries and the preparation of legislation and is responsible to parliament; The Prime Minister shall preside at meetings of the cabinet;’. However, art 163 of the draft produced by the Attorney-General provided thus on the prime minister: ‘There shall be a Prime Minister of the Republic, who shall be appointed by the president in accordance with provisions of this part; The Prime Minister shall be accountable to the president and shall, under the general direction of the president: be the leader of Government business in parliament; perform or cause to be performed such other duties as the president may direct; and perform such other as are conferred by this constitution and any other functions as the president may assign.’

12  Proposed new constitution of Kenya, 2005, cls 114‒15.

13  Kenya National Dialogue and Reconciliation (KNDR), ‘Longer Term Issues and Solutions-Constitutional Review’ (4 March 2008).

14  Committee of Experts on Constitutional Review, Harmonised Draft Constitution (17 November 2009), cls 155‒92.

15  Committee of Experts, Final Report of the Committee of Experts on Constitutional Review (2010) 88‒9.

16  Constitution of Kenya, arts 131‒45.

17  Ghai and Ghai (n 5) 94‒95.

18  Constitution of Kenya, art 132.

19  ibid art 132.

20  ibid art 97.

21  Ghai and Ghai (n 5) 103.

22  Commission for the Implementation of the Constitution (CIC), ‘CIC Press statement on the violation of the Constitution by Parliament’ (2 October 2014).

23  Yash Pal Ghai and Jill Cottrell Ghai, ‘Ethnicity, Pluralism and 2013 Elections’ in Yash Pal Ghai and Jill Cottrell Ghai (eds), Ethnicity, Nationhood and Pluralism: Kenyan Perspectives (Global Centre for Pluralism and Katiba Institute 2013) 120.

24  Parliament of Kenya, ‘National Assembly Committees’ (15 June 2015) <http://www.parliament.go.ke/index.php/the-national-assembly/committees/committees?start=20> accessed 15 June 2015.

25  Constitution of Kenya, arts 111‒12.

26  ibid art 114.

27  ibid art 114(3).

28  Senate v National Assembly Supreme Court of Kenya, Advisory Reference Opinion No 2 of 2013.

29  Supreme Court Constitutional Application No 2 of 2011 [40].

30  Senate v National Assembly (n 28).

31  Coalition for Reform and Democracy (CORD) and 2 others v Republic of Kenya and 1 other High Court of Kenya at Nairobi, Constitutional and Human Rights Division, Petition No 268 of 2014 consolidated with petition No 630 of 2014 and petition No 12 of 2015.

32  Nation Reporter, ‘Senators Seek Uhuru’s Hand in Feud with National Assembly’ (Daily Nation 15 November 2014) <http://www.nation.co.ke/news/politics/President-Kenyatta-caught-in-supremacy-war/-/1064/2524068/-/view/printVersion/-/2c0799/-/index.html> accessed 22 November 2015.

33  Ghai and Ghai (n 5) 102.

34  Constitution of Kenya, art 95(5)(b).

35  ibid art 131(2).

36  Edwin Mutai, ‘Vetting committee deadlocked over Kandie, Chirchir’ (Business Daily Africa, 13 May 2013) <http://www.businessdailyafrica.com/Vetting-committee-deadlocked-over-Kandie-and-Chirchir/-/539546/1851330/-/fg5va3z/-/index.html> accessed 22 June 2015.

37  National Assembly, ‘Parliamentary Debates’ (Official Report, 11 June 2015) 8‒10.

38  ibid 8.

39  The Presidency, ‘Statement on Parliament’s vetting of Amb Dr Monica Juma’ (11 June 2015) <http://www.president.go.ke/2015/06/11/statement-on-parliaments-vetting-of-amb-dr-monica-juma/> accessed 23 June 2015.

40  CIC, ‘Press Statement on the Unconstitutional Exercise of Power by the National Assembly’ (12 June 2015) <http://www.cickenya.org/index.php/newsroom/item/486-press-statement-on-the-unconstitutional-exercise-of-power-by-the-national-assembly#.VYr0yPmqqko> accessed 23 June 2015.

41  Constitution of Kenya, art 245(2)(a).

42  ibid art 240(8)(a) and (b).

43  ibid art 190(5)(d).

44  ibid art 192(4).

45  Anthony Omuya, ‘Uhuru Hits Out At House Teams Over Cabinet Summons’ (Business Daily Africa, 7 November 2013) <http://www.businessdailyafrica.com/-/539546/2064600/-/view/printVersion/-/1iu74f/-/index.html> accessed 23 June 2015.

46  Commission for the Implementation of the Constitution (CIC), ‘CIC Press statement on the Violation of the Constitution by Parliament’ (2 October 2014).