BICAMERAL LEGISLATURES

IN A PRESIDENTIAL SYSTEM: THE

ARCHITECTURE OF THE KENYAN
CONSTITUTION

A PAPER PRESENTED BY
NZAMBA KITONGA (SC)

AT

THE POST-ELECTON SEMINAR FOR

MEMBERS OF THE NATIONAL ASSEMBLY
FROM 5TH -8TH MARCH
AT MOMBASA

BICAMERAL LEGISLATURES
IN A PRESIDENTIAL SYTEM: THE ARCHITECTURE OF THE KENYAN
CONSITUTION
In terms of political leadership and intellectual thought Kenya has always
been largely divided into two schools of thought – those who support a
presidential system government and those who support a parliamentary
system of government.

At the independence we started off with a parliamentary system of

government under the leadership of President MzeeJomo Kenyatta. However
shortly thereafter we moved to presidential leadership. I am avoiding the
use of the words presidential system of government because strictly
speaking it had many facets of a parliamentary system of government like
the official leader of the opposition and members of parliament could serve
as Cabinet Ministers.

The system had a powerful executive presidency which controlled all the
arms of government including the appointment and dismissal of Judges. To
accommodate these two competing schools of thought i.e. those in favour of
a presidential system of government and those in support of a parliamentary
system of government the Bomas draft reconstructed what is famously
known as the Hybrid System of government. Essentially this reconstruction
captured the main attributes of both systems of government and blended
them into one.

At the apex we had an Executive President elected directly through universal

suffurage. We also had the Prime Minister appointed by the President but
being the leader of the majority party in Parliament. The cabinet could be
appointed from within and outside Parliament. There was the office leader of
the official opposition in parliament at the helm of the opposition party with
the greatest number of seats in parliament.

This hybrid system was largely retained in the subsequent Kilifi/Wako drafts.
However the Wako draft had many negative attributes particularly in its
handling of devolution. It was eventually rejected at the referendum in
2005.

Our working document as a Committee of Experts was the harmonized draft.

The word harmony was introduced to illuminate the fact that it attempted to
blend all the positive and workable aspects of all the drafts while maintaining
the integrity and coherence of the final draft.

With regard to parliament a fundamental attribute of the harmonized draft is

that it had the senate as an upper house which superintended over and
could overrule the National Assembly. This is what obtains in most
democracies. It would also protect and enhance devolution through its
legislative and oversight role.
The harmonized draft was submitted to the Committee of the National
Assembly on the Constitution – this is the famous Naivasha meeting. It was
supposed to be a routine meeting to approve the final document to be
submitted to the National Assembly for ratification and thereafter to the
referendum. I say routine because we had continuous engagements with the
Committee. Our thinking and that of the Committee was the same in most
respects. We had on many occasions discussed the harmonized draft with
the Committee and they were in agreement with the proposed hybrid system
of government.

However unknown to us the Naivasha Meeting took a radical turn. It adopted

a pure presidential system of government. It recommended a very weak
senate. Thereafter we had to hurriedly research and construct a pure
presidential governance system. This was in view of the strict timelines
imposed by the Constitutional Review Act.

This is what you now have. An executive that excludes members of

parliament from the cabinet. It locks out the office of Prime Minister and his
deputies. It also does not have the office of the leader of the official
Opposition in Parliament. The leader of the Opposition who is actually the
second in the presidential electoral contest is completely locked out of the
government system.

The weakened Senate had no oversight control over the National Assembly.
This is why we struggled to include clauses which would enable both houses
to form mediation Committees to arbitrate disputes during the passing of
joint Bills.

SOME HIGHLIGHTS ON CHALLENGES

Even a newly constructed house must have initial challenges. The

implementation of the 2010 constitution posed challenges as follows:-

1. There were conflicts between the National Assembly and the Senate
at one time leading to judicial proceedings in the Supreme Court in the
Supreme Court Advisory Opinion No. 2 of 2013. The Senate vrs
National Assembly. In that case the National Assembly had passed a
Revenue Allocation Bill concerning counties without reference to the Senate.
The Senate challenged the constitutionality of that action. The National
Assembly was overruled by the Supreme Court.

2. The Senate has constantly complained that the National Assembly has
refused to allocate funds to facilitate the work of Senators and their
expenses.
3. On its part the National Assembly has vigorously fought to retain the
Constituency Development Fund. The High Court has ruled that
certain provisions of the Constituency Development Fund Act are
unconstitutional in so far as they contradict the oversight role of
members of parliament. This controversy is ongoing and the courts will
ultimately resolve it.

4. The National Assembly enacted several pieces of legislation which

were declared unconstitutional. These included some provisions of The
Security Laws (Amendment) Act which were found to invade privacy. The
Judicial Service Amendment Act had provided that the Judicial Service
Commission should recommend three names to the President for
appointment as Chief Justice and Deputy Chief Justice. The court upheld
the positionthat under the Constitution only one name was to be
forwarded to the President for appointment.

5. The court system found itself in trouble when the National Assembly
passed a resolution recommending to the president that he constitute a
Tribunal to look into the conduct of some of the members of the Judicial
Service Commission. In a subsequent court case the court ruled in
favour of itself.

The court ruled that the establishment of a Tribunal to investigate

members of the Judicial Service Commission was unconstitutional. We
had initially proposed that this Commission be composed of
lawyers and members of the public from outside the Judiciary as happens in
Uganda. The purpose was to protect the courts from perceived bias in
favour of the Commission. It was also meant to instill greater confidence in
the work of the Commission.

6. The National Assembly purported to pass motions to increase the

salaries and emoluments of members of Parliament. This led to legal
proceedings between itself, The Salaries and Remuneration Commission
and The Law Society of Kenya. The court restated the mandate of the
SRC and declared the motion to be unconstitutional.

7. To cap the highlights is the famous 1/9/2017 decision of the Supreme

Court to annul the Presidential election. It was a decision that annoyed
many of you but also made many of you happy. Its merits or lack
thereof will remain a matter of great legal and historical controversy. I
however submit that at this juncture in our national history it augured well
for our country. It was a first for an African country and the fourth in the
world. It affirmed the Independence of our judiciary and demonstrated that
we are a democracy governed by the rule of law.
8. Subsequent events were rather sad and tragic. Lives were lost, a
number of people were injured, property was destroyed and the economy
suffered.

9. The taking of an oath is at the core of the Legal Profession. Advocates,

Magistrates and Judges take an oath when assuming office. They are
also empowered by law to administer oaths. All witnesses in court
proceedings take an oath. Members of Parliament, Senators, Speakers
and Cabinet Secretaries take the oath of office. It is a matter of grave
legal consequence and solemnity.

10. The obedience of court orders by all persons is a cardinal prerequisite

of the Rule of Law. The opposite of that is chaos and lawlessness. The
government must be at the forefront to lead by example in complying
with court orders no matter how unpalatable and unfair they appear to be.
The reaction of the government to the “swearing in” episode posed
grave dangers to the constitution and the culture of constitutionalism.

11. The apparent conflicts between the Executive – the Judiciary,

Parliament and Independent organs have been a cause of concern.
However these concerns are misplaced. Historically in all democracies
these conflicts have always persisted. In the United States of America
today many of President Donald Trump’s executive orders have been
stopped by the courts. What we regard as conflicts is in actual fact the
coherent workings of the separation of powers among the three arms of
government with checks and balances. However it should never get
personal like threatening to slash the budget of the Judiciary.

12. This is what happened when the High Court declared some provisions
of the Constituency Development Fund Act unconstitutional. Members of
parliament were also enraged when High Court nullified the motion to
increase their salaries and emoluments. The rage was also very
evident on the part of the executive after the Presidential poll was
annulled.

13. Settling a constitution takes many years of litigation and eventually the
courts settle every constitutional question for posterity and clarity. The
American constitution is still under ligation today. So conflicts among
the arms of government are expected. The contrary is what should
worry Kenyans. When the Executive, Parliament and the Judiciary are
buddies-be very afraid.

WAY FORWARD
The 12th Parliament will navigate the country to its next level. I would
commend it to inter alia guide the country in considering:-

1. Whether the time has come to assess the efficiency and functionality
of the constitution eight years after its enactment. Do we need to
revisit to harmonized draft? Do we need an expanded Executive and
the office of the leader of the official Opposition in Parliament? The
President has created the office Chief Administrative Secretary
probably to enhance inclusivity. Does this demonstrate the existence of a
lacuna which needs to be filled?

2. The question of further electoral reforms in the light of our recent

experiences. These include the creation of a separate body to
supervise political party primaries and nominations. Political parties have
shown that they cannot supervise their own primaries because the
supervisors have vested interests in the primaries. Political parties also lack
the resources and finances to conduct such primaries. This means that
whoever is providing the finances becomes the owner of the political
party.

3. The role of the Senate vis-à-vis that of the National Assembly. Areas of
conflict or potential conflict may belooked into so as to create a seamless
working relationship.

4. The composition of The Judicial Service Commission. It may be

necessary to reconstruct the Commission so that sitting Judges are not
members of the Commission.

5. Policies and legislation which enhance inclusivity and eliminate

negative ethnicity both at county and national levels.

6. Policies and legislation to combat corruption. We need to hold errant

police officers to account in terms of engagement in unlawful violence
and corruption.

7. Policies and legislation which enhance the rights of women, youth,

the marginalized, minorities and the disabled.

8. Policies and legislation that deepen devolution by enhancing efficiency

and combating wastage, theft, pilferage and corruption within county
governments.

9. We must remember that members of the National Assembly are

elected not to be sycophants of theirpolitical parties and party leaders.
They are elected leaders in their own right. It their duty to maintain the
separation of powers and the independence of parliament from the
Executive. For MPs there is no such thing as “orders from the above”
because you are the above itself. You represent the entire collectivity and
diversity of Kenya.

10. We elected each of you independently as a leader because of your

leadership qualities. We do not expect you to be captive to negative
political interests, corrupt cartels and selfish commercial interests.

CONCLUSION

It would appear that the country will be stuck with the JUBILEE and NASA
formations in the foreseeable future even if their names may be changed
from time to time. This is not necessarily negative. Indeed it may be a good
idea to have big political parties like the Republicans and Democrats in the
U.S or the Conservatives and Labour parties in the U.K. Strong wide spread
political parties which are well funded and have a proper secretariat and
infrastructures are the way to go.

It is however dangerous for a country when political contest degenerates into

lawlessness and a breakdown of constitutional order. The purported
“swearing in” of 30/1/2018 is ultra vires our constitution. However the
subsequent crackdown on NASA supporters including the violation and
defiance of court orders was equally unconstitutional.

It should not be the case that political contest degenerates into a breakdown
of constitutionalism. This constitution was designed such that it protects one
against his worst enemy when the said enemy is in power. It did not
however perceive open defiance and violation of the constitution. In the
words of the great philosopher Dean Russel “thelaw is a social
contract”. A constitution assumes that the rulers and their subjects are
willing to abide by it. It is therefore the solemn duty of all of us as Kenyans
to obey and submit to the dictates of the Constitution.

The development of a culture of constitutionalism is our sovereign and

supreme obligation.

NZAMBA KITONGA (SC)

AT MOMBASA
5/3/2018